Cody Woods is a Sophomore at Morehouse College majoring in Business Administration with a concentration in Management from Atlanta, GA. Cody shared his story with us. In my life, there have been three teachers that have taught me so much, and those teachers are Adversity, Pain, and Failure. When I was young I was ridiculed and misunderstood because I was different, but according to worldly standards I was well off because my family was doing well. Until the economic recession in 2008, and I was stripped of what I thought of as my normal. I lost my home, all of my possessions, and my family as I knew it, and we had to do whatever it took to survive. Eventually, I hit bedrock and at my bedrock is where I found God, and he found me in the scrap yard of disparity, and Changed my life and my perception. My teachers turned from Adversity, Pain, and Failure to Perseverance, Grace, and Favor. Know I am operating in my purpose and my gift of Glorifying him, and changing the world through my mind and heart for entrepreneurship, which has now brought me to Morehouse College. During my matriculation I have been Blessed to go to China to get an international perspective on life, become one the heads of a student organization as a freshman, which has taught me leadership skills, and intern at a notable record label that has allowed me to reinvent my mind for entrepreneurship, and Love for my fellow man. Where I am at now is far from the beginning because I know through my works and Faith I will be able to go places and help people beyond own dreams and understanding. The sky is not the limit, it is just the beginning.

Read Winning Work Here.

Destiny Dukes, 18, was born in Wheeling, West Virginia, but raised in Norfolk, Virginia. Destiny is currently a freshman at Tidewater Community College. She has always had a fascination in United States history and stays current with the politics of her country. She is the second oldest of five and has a total of eight animals at home, four cats and four dogs. In the Fall of 2017 she plans on attending her second year at TCC hoping to get her associates degree in Science. Her mom is her inspiration and her dad is her hero. Both of them fully support her in her aspiration of having a career in law enforcement as a lab technician.

Download Winning Work Here.

For over 45 years, Octavia Taylor inspired her students in the Camden High School classroom to achieve their personal best in their lives, as well as in volleyball, tennis, drill/dance team and gymnastics. She was a role model that many students followed into their own teaching professions. Her popularity is evident when she is greeted frequently by former students with hugs and squeals! She was born and raised in Arkansas, graduated from University of Central Arkansas in Conway when it was Arkansas State Teachers College, and as a young mother, began teaching. With five grown children and nine grandchildren, she continues to lead and teach in the community – even at the age of 90! Octavia chairs the DAR Constitution Week celebration in Ouachita County, and personally participates in the “Bells Across America” bell ringing at her St. John’s Episcopal Church. She yearly writes letters in the newspaper promoting the Constitution, and gets Proclamations declared by the Mayor and the County Judge. She serves on the Oakland Cemetery Preservation Committee of the Ouachita County Historical Society, and is a character twice a year in the Cemetery Walks. She is often photographed in her elaborate costumes, made by one of her daughters. School children are treated to her stories of “tales past” during the Camden Daffodil Festival, as well as when on school tours to the McCollum Chidester House, where she is a docent. When Octavia is not teaching history, she is involved in Garden Club projects, promoting Music Club opportunities and, during the summer months, teaching water aerobics in the city pool. She has served as state DAR Conservation Chair and is a Master Gardener, reflecting her interest to promote butterfly and bird friendly yards in her own landscaping. She has been involved in planting thousands of daffodil bulbs all over town.

Octavia is considered “ageless” to her many friends, and enjoys intergenerational friendships far and wide. To keep up with Octavia, one has to put on running shoes and be willing to get involved in a project. She puts her words into actions and motivates others to do the same.

Read Essay Here.

Bob has been an equine veterinarian for 42 years. He attended Louisiana State University and Oklahoma State University. He is a race track veterinarian, and spent the majority of his career at paramutual race tracks in Louisiana and California. He has been semi-retired since 1999, and lives in Estes Park, Colorado with his wife, Linda. They have three children and two grandchildren. Bob became acquainted with Constituting America seven years ago when his granddaughter won Best Poem in the inaugural year of the program, and has been an avid fan ever since!

Read Essay Here.

I was born and raised in the San Francisco Bay area, but have lived in Texas for over 30 years. I’ve been married for almost 35 years, we have two grown children and two grandchildren. After homeschooling my daughter, I started working at our neighborhood elementary school as a 4th Grade Aide, then a para-librarian. I’ve worked as a para-librarian at Sue Crouch Intermediate School in Crowley ISD, since 2012. It’s a two-year campus for 5th and 6th grade, so every other year I teach Our Nation’s Foundations to supplement Social Studies curriculum. I’m also known in local circles as the Tap-Dancing Librarian for hosting an after school Tap Club.

Read Lesson Plan Here.

I am from Monarch Beach, California and currently a world history teacher at Serrano Intermediate School in Lake Forest, California. The students in my classes are fascinating people and I am confident in their abilities to learn, grow, and make valuable contributions to our society. That is why I collaborate with other teachers to do cross-curricular activities, share stories about my travels, my entrepreneurship in the food business, and take interest in what students have to say about history and its lessons. Fundamentally, I promote student ownership for learning. Treasuring our Constitution, practicing what we preach, and knowing our place in history is our guiding light. Students in my classes do brilliant things, have excellent curiosities, and learn so much. We go on fun adventures, perform engaging puppet shows, do hard work, visit museums, and celebrate remarkable accomplishments throughout history at our World’s Faire. Certainly, my hope is students come away knowing life loves a student.

Read Lesson Plan Here.

Marin Mckinney, 10, lives in Ballwin, Missouri. She is homeschooled and is in the fourth grade. Her favorite subject in school is reading, and she also enjoys history and math. Her favorite historical time period is the American Revolution. Marin has taken art classes every week for the last three+ years and loves it! She is passionate about art and design and hopes to someday become a professional artist. In her free time, Marin likes to create projects in her “Creation Station” and loves to play soccer. She also manages to squeeze in time to play with her two younger brothers of whom she adores! She’s thrilled to have won this award and looks forward to sharing with others the importance of the Constitution.

View Artwork Here.

With this poetry category, Becca creatively had fun while using the French political philosopher’s name (Montesquieu) in an acrostic to enlighten the reader of our nation’s ‘Checks and Balances’ system. Becca, 12, is currently a 6th grader at London ISD and lives with her parents, younger sister and two brothers in the sparkling city of Corpus Christi, Texas. While striving for good grades, her favorite subjects are Reading and Writing. Hobbies include listening to music and any activities that involve creative designing. In a leadership capacity last year, Rebecca received the school’s Academic Excellence (or Marlin) Award with her essay entitled “The Importance of Family.” With more time and focus, Becca hopes to gain greater understanding and appreciation for our beloved Constitution and how it connects with our everyday life.

Read Poem Here.

Faith Liu, 22, grew up in Morganville, New Jersey, spending most of her high school years writing and producing short films within a small company of friends. She received her B.A. in English and Music from Hillsdale College, where she designed and directed two student productions – Mozart’s The Magic Flute and Shakespeare’s Macbeth – and spent a summer at Oxford University as part of their study abroad program. She is currently pursuing an M.F.A. in Screenwriting at the University of Southern California.

Since 2004, Matt Fitzgibbons has been writing non-partisan music that celebrates America’s founding principles. His goal is to inspire people to think, learn and talk about individual liberty.

Fitzgibbons has released four albums which have received many honors including two ASCAPlus awards, a song featured in a documentary on the Right to Bear Arms, a second place award in an Irish songwriting contest, and an Honorable mention in the 2016 SongDoor International Songwriting Competition, among others. With his music, videos, writing and hundreds of interviews across the country and abroad, Fitzgibbons has reached millions of people with his positive message. For more information, music, videos, show dates and booking, Matt Fitzgibbons’ website is PatriotMusic.com

Lucas Elliott is a second grader from Wake Forest, North Carolina. His favorite subjects in school are math and reading. Since he is the youngest of four children, he is well versed in making sure his thoughts and ideas are not ever lost in the shuffle. He loves to entertain and is excited about all forms of media. He hopes to have a forum to share his vision with the world in the future. He also loves to play basketball, and tinker around the house with his tool set. He had many questions during this past election season and enjoyed writing his poem as he was learning about how our government was designed.

Read Poem Here.

Lirit Kaye, 10, lives in Phoenix, Arizona. She attends Benchmark Elementary School and is in the fourth grade. Her favorite subjects are math and art. Drawing always has been Lirit’s passion. She has taken art classes at the Carrie Curran Art Studios in Scottsdale and from Mrs. Blanco in the Benchmark after school program. Lirit has earned a Blue Belt in Karate and likes to sing and dance. She enjoys constructing Lego sets and playing golf with her older brother. Lirit is truly honored to have won this award.

Halley is a native Coloradan, and is an 8th grade home schooled student. She has studied piano, music theory and plays the ukulele. Halley keeps busy with her nine chickens, two Schnauzers and three horses. She enjoys riding the trails, participating in the rodeo and is a committed hunter/jumper equestrian athlete. Halley loves history and is a past Best Elementary Poem winner.

I am homeschooled and I live in Sanford, Florida. I love to sing and write songs, Other things that I enjoy are drawing, swimming, filming, and dancing. I play the ukulele and piano. I love animals and have two dogs and a turtle. I like to hangout with my friends and we usually make songs and stories together! I would like to be a voice over actress, writer, or a singer songwriter someday!

Quinten, 15, Best Middle School Entrepreneurial Winner, lives in Suwanee, GA and is currently a freshman in high school. He plays basketball and enjoys drawing and listening to music. Quinten’s favorite subjects are Social Studies and Science. Quinten recently traveled to Vermont and New Jersey to see extended family and looks to travel more in the future. Quinten is a talented artist, who enjoys developing his craft.

View Winning Work Here.

Victoria Gruen, 13, lives in California. Her favorite subject in school is early American history. Pounding her soul out on the piano is one of her favorite things to do. She likes needlework, and is currently sewing time-period clothing. Among her favorite authors are Austen and Alcott; her favorite books are Pride and Prejudice and Little Women. When Victoria grows up, she wants a career in politics. As a firm believer in freedom and the Constitution, she wants to defend the principles that our Founding Fathers held – among which are life, liberty, and the pursuit of happiness.

View Winning Work Here.

Andrew Cooksey, 12, enjoys rafting, target shooting, road trips, skiing, basketball, politics, camping, and other outdoor activities. He lives near Portland, Oregon. He is homeschooled, plays in an orchestra, and his favorite subject is Greek. He also enjoys history and math. He likes to try out new Mexican restaurants with his brothers.

Claire Ledford, 12 is the winner of the Middle School Essay Contest. She is a homeschooler from Sanford, North Carolina. She enjoys reading, writing and watching movies. Some of her favorite books are A Girl of the Limberlost, the Serafina series and Cracker. She also loves to travel and is working on a travel challenge to visit 15 countries, all 50 states, all 100 counties in her state by 2020. She is about half way there. Previously, she lobbied for a homeschool bill that was passed and she was able to attend the bill signing with the Governor. She is part of NC Junior Historian through her History Hounds Club and has won numerous statewide contests. She is very excited about winning this contest and teaching others about the Constitution.

Read Essay Here.

Greg Volynsky, 17, the best entrepreneurship winner, is a native of New Jersey and a student at the Bergen County Academies. Throughout his high school career, Greg has continually explored various fields; engineering research became an entrepreneurial experience, passionate discussions turned into formal debate. Greg is an active method of the Junior Statesmen of America and coaches debate at the Bergen County Debate Club. For Greg, discussions are both intellectually stimulating and plain interesting; but they are not enough. Recently, Greg began to volunteer on a local city-wide campaign, where he works directly with the candidate to draft policy proposals. Furthermore, Greg realized that most media coverage is political commentary, not actual policy analysis; so Greg launched a website – Politiscope News (PolitiscopeNews.com), which aggregates policy-related articles and analysis. Greg hopes to continue to turn conversations into actions wherever he goes and to apply the entrepreneurial approach to government, for it is by thinking creatively and pursuing policy beyond the constraints of politics that we can harness innovative solutions to help real people.

View Winning Work Here.

My name is Cameron Alexander Graves. I was born on Oct 30, 1998 in Portsmouth, Virginia and moved to Alexandria, VA in 2007. I am currently a senior at T.C. Williams High School and plan on going to college to get my masters’s in Business. Ever since the age of 14, I’ve been a huge fan of Hip-Hop music. So much of a fan, I took up the art form myself and began writing raps and poems. Over the years, I’ve developed my own distinct style, and have received local recognition because of it. This positive feedback has only deepened my passion for the art, which is why one of my top goals is to become one of the best lyricists to ever live.

Ben Phibbs is a 17-year old homeschool junior from North Carolina who plans to attend Patrick Henry College in preparation for a career in constitutional law. Inspired by his parents to revere the treasured tradition of American Republicanism, Ben has, from a young age, admired the rich history of the Founding and laudable structure of the Constitution. For enrichment and service, Ben participates in debate and moot court, tutors at a local Christian school, and leads his church youth band.

Read Essay Here.

As a senior at Western High School in Ft. Lauderdale, Florida, Isabella Cring, 17, is already a veteran in vocal performance and local theater. With musicals, open mic nights, coffee houses, civic organizations and even a lead singer at the Renaissance, where she performs weekly in her father’s church, she has scattered the seeds of her talent and has begun to harvest a great crop of appreciation. About a year ago Isabella added song-writing to her pursuits, using both the piano and the ukulele. Isabella also leads the South Florida Cappies (Junior Theater Critic) and is a food bank and mentoring volunteer.

 

 

 

Jack Duffy is a freshman at Newman Catholic High School in Wausau, Wisconsin. At the age eleven he discovered filmmaking and it has been his passion ever since. Jack loves to free ski, run track, and play soccer, but he spends most of his time watching movies, script writing, shooting, editing, and working to earn money to buy more film equipment. After high school graduation he plans to go to college and study film. In the meantime, Jack continues to make films starring his friends, neighbors and his seven brothers and sisters.

Grace Floring, 19, is the 2017 Best College STEM winner and 2016 Best High School PSA winner. She grew up in Delaware, Ohio and is currently an undergraduate student at Case Western Reserve University studying Aerospace and Mechanical Engineering. Grace has always been interested in science and math, and someday hopes to inspire young women to pursue their interests in STEM. She is excited to continue being involved in her community as her college career continues.

 

Grace’s Winning STEM PROJECT

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Kira Mathiesen is 18 and currently in Boston, Massachusetts studying Biochemistry on a Pre-Med track. She is originally from Santa Cruz California, where she was first inspired to get active politically in her community, and now participates in many marches and peaceful protests on the east coast. She is working hard to make sure her and every person’s voices are heard while also studying hard to get her degree in 2020.

Read Essay Here.

In defending the establishment of the United States Supreme Court, Alexander Hamilton maintained that the absence of an independent judicial power had handicapped the government established by the Articles of Confederation. The way the Articles government had been structured made the rule of law–even the modest legislation enacted by Congress–more or less impossible.

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Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012): Protecting Religious Liberty in American Schools

In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012), the federal government tried to force a church, against its will, to hire a minister to teach in the church’s school. The US Supreme Court held that the federal government could not force the church to do so. Churches are free to shape their faith and mission under the Free Exercise clause by selecting their own ministers and religious teachers. The Establishment Clause prohibits any government involvement in their selection.

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The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The Supreme Court has interpreted this prohibition to mean that state action that imposes restriction on the free exercise of religion is permitted only when there is a “compelling state interest in the regulation of a subject within the State’s constitutional power to regulate…” and even then, only “to prevent grave and immediate danger…”

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Janine Turner is a native Texan raised by her father, Turner Maurice Gauntt, Jr., from Athens, Texas and her mother, Janice Gauntt, from San Antonio, Texas. At the age of fifteen, Janine journeyed to New York City to become the youngest model at the Wilhelmina Modeling Agency. At age seventeen, Janine was in Hollywood launching her acting career. After acclaimed success, Janine returned to Texas in 1995 to raise her beloved daughter, Juliette, on their Longhorn cattle ranch in North Texas.

Janine is an entrepreneur at heart. Besides being a single mother, she is an actress, author, speaker, singer, director, yoga enthusiast, rancher, foundation chair, columnist and political activist.

As an actress, Janine is best known for her Emmy & Golden Globe nominated role as Maggie O’Connell, the feisty bush pilot in the hit TV series, Northern Exposure, during which she was named one of People Magazine’s “50 Most Beautiful” and one of Esquire Magazine’s “Women We Love.” Other notable feature film credits include: Cliffhanger, Leave it to Beaver – as June Cleaver, Dr. T & the Women, Steel Magnolias, and the popular TV series – Friday Night Lights. Janine has recently completed three new film roles in Solace, opposite Anthony Hopkins, Occupy Texas, & Ivy League Farmer.

As a director, Janine has won multiple awards for her directorial short film debut, Trip in a Summer Dress and now is launching her first full length feature film as screenwriter, director and star in the upcoming, Memoirs of a Beautiful Boy. Amongst producing and starring in a Christian Yoga DVD, Christoga, and writing and singing songs with her daughter, Juliette, for their debut album Mockingbird Hill, Janine has authored two published books, the Washington Post Bestseller, Holding Her Head High about historical, heroic single mothers and the recently released A Little Bit Vulnerable – on Hollywood, God, Sobriety and Politics.

On fire to protect America’s Republic, Janine launched an award winning radio show, The Janine Turner Show, a foundation, Constituting America, and authored 85 essays on the Federalist. Her opinion editorials are published at the Washington Times, the Washington Examiner, Foxnews.com – and as a column at PJ Media. Appearing on The O’Reilly Factor every Friday for a year as a political pundit, Janine continues to be a frequent guest on Fox News.

Inspired by her appointment to President Bush’s Council for Service and Civic Participation, Janine created her foundation, Constituting America, which she co-chairs with Cathy Gillespie. Her mission is to educate America’s youth and citizens about the importance of the nonpartisan United States Constitution. She utilizes her Hollywood experience to encourage kids to write and direct short films, public service announcements and hit songs about how the founding document protects liberty.

Janine, inspired by her father, a graduate of the United States Military Academy at West Point, speaks across the country to school kids and adults about preserving America’s principles and the United States Constitution, including a prime time speech at the Republican National Convention in 2012.

Janine continues to inspire audiences across the country not only with her artistic talents but with her speaking talents – on tours with such issues as single motherhood, civic duty, Constitutional politics, sobriety, health, her Christian Faith and on overcoming rejection – surviving her Hollywood 10,000 no’s.

Cathy Gillespie has held numerous positions in government and politics over the past 30 years. She has served as a congressional chief of staff (Congressman Joe Barton), campaign manager, fundraiser and grassroots organizer. Women’s outreach has been a special interest of Cathy’s and in 2004 she served as Director of President Bush’s W Stands for Women effort and in 2008 helped Actress Janine Turner promote her Washington Post bestselling book, Holding Her Head High: 12 Single Women Who Championed Their Children and Changed History.

Cathy serves as co-chair of Constituting America with Actress Janine Turner (Northern Exposure, Friday Night Lights, Cliffhanger) – and has served in this capacity since Constituting America’s founding in 2010 by Actress Janine Turner. Constituting America’s mission is to utilize the culture and multi-media outreach such as music, film, internet and social media, to educate, engage and inspire America’s adults and students about the importance of the U.S. Constitution and the foundation it sets forth regarding our freedoms and rights.

Constituting America is the only organization that utilizes the movies, music and television with the kids’ own works, to inspire Americans of all ages to learn about the U.S. Constitution by distributing their works through the national media.

Cathy is active in a number of political and charitable organizations, having served until recently on the Board of Visitors of Virginia State University, and currently on the board of Good Shepherd Housing and Family Services in Alexandria, Virginia and the Joe Barton Family Foundation based in Ennis, Texas.

She has volunteered and raised funds for the Barbara Bush Literacy Foundation, Independent Women’s Forum, Foundation to Eradicate Duchenne Muscular Dystrophy, Histiocytosis Association of America, and the Susan B. Anthony List. She has served as a Commissioner on the President’s Commission on White House Fellows, and as a board member of Bishop Ireton High School.

After 25 years on Capitol Hill and in politics, Cathy has come to believe that in addition to participating in the political process, we all must work to educate our children and re-educate ourselves about the principles embodied in the United States Constitution, and upon which our country was founded. Cathy believes we all must engage in “culture making,” in order to preserve and protect these values.

Cathy is a graduate of Texas A&M University. She lives in Fairfax County near George Washington’s Mount Vernon. Cathy is married to Ed Gillespie, former Republican National Committee Chairman and Counselor to President George W. Bush. Ed and Cathy have three children: John, Carrie & Mollie.

Geyer lives in Texas and oversees a herd of Wagyu cattle at The WD Ranch. She is also Athletic Director and coach for the Stafford Cobras, a youth football program.

Geyer was raised in Brownwood, Texas and attended Tulane University, majoring in History; where she met her husband, Erik, who is from Norway. They have four children.

She also has a degree in Political Management from The George Washington University and has worked on campaigns across the U.S.

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

Fred Thompson joined Thompson Hospitality in November 1992.

As CAO he is responsible for monitoring and maintaining corporate overhead costs and services, including vendor contracts, subcontracts, commissions and procurement contract negotiations. Fred is also responsible for client relations in the contract food service sector of Thompson Hospitality.

Fred Thompson has nearly 20 years experience in purchasing and procurement, having served as small and minority business opportunities coordinator for the city of Newport News, Virginia. He earned a BA in Classical Studies from Hampden-Sydney College and a Master’s Degree in Public Administration from the University of Virginia.

Dwayne Horner’s love of country and love of our U.S. Constitution drew him to become a part of Constituting America and its goal of educating America on the greatest gift given to us: the U.S. Constitution.

Dwayne has been involved in all aspects of civic engagement from serving as a senior advisor to Governor Rick Perry‘s reelection campaigns, and congressman Roger Williams election to the U.S. House of Representatives in 2012, to volunteering on multiple political campaigns for candidates who are constitutional conservatives and pro life candidates, to acting as both promotions director and a fill-in host for Christian talk radio in Dallas Fort Worth, and advocating for our veterans who have served our country.

In addition to serving on the Leadership Board for Constituting America, Dwayne serves on the board of the Crockett retreat center to assist veterans and first responders by providing an opportunity to train with licensed horse therapists at a Texas ranch setting.

His public relations and event promotion resume has assisted many organizations including Constituting America.

Dwayne is the son of Charles & Marlene Horner – his father served America in Korea and Vietnam in the U. S. Navy

Cindy Sue Clark is a proven businesswoman and grassroots political activist who is deeply involved in private and political leadership at the state and national level.

As a successful businesswoman, Cindy Sue had served as an executive with Triple Five Corporation, and continues to provide business strategy counsel for them. Some of the projects of Triple Five Corporation are Mall of America, West Edmonton Mall and other mega properties. She had owned numerous business including Avru International Trading Inc. and Clean Sweep which she started up and eventually sold before working for Triple Five. She currently owns A. Clark Roofing company with her husband.

Cindy Sue has done various fund raising events for political and non political causes. Some include private events for His Holiness the 14th Dalai Lama, ChilpHelp, La a’ Kea Foundation, Autism Bridges to name a few. She was given the title of Pioneer fundraiser for the Bush/Cheney campaign with members nationally totaling 250 people only. She has actively campaigned for Governor Linda Lingle, Mayor Alan Arakawa and former Speaker of the House of Representatives Newt Gingrich. Cindy Sue had served as Speaker Gingrich’s Campaign Chairwoman for his presidential campaign where she served as a Gingrich media surrogate during the campaign.

Locally she served a leader in the community and as the Maui County GOP Chairwoman, the Vice President of the Maui Tea Party and has been a Delegate and Alternate Delegate to the 2004, 2012 and the upcoming 2016 National GOP Conventions.

Giving back to the community is a large part of Cindy’s life. She served on the La a’ Kea Foundation for Mentally Disabled Children, a Founder of Autism Bridges Maui, board member of Childhelp, Maggie’s List and previously served on the commission for Disabled of Maui.

Her fondest memories include meeting Newt and Callista Gingrich at a Whitehouse party and becoming lifetime friends, shooting with former Vice President Cheney in Georgia and fund raising for charities with Steven Tyler of Areosmith, guitarist prodigy Johnny Lang, and Mick Fleetwood of Fleetwood Mac to name a few. A special shoutout to Lee Greenwood and his beautiful wife, Kim. She treasures the times they spent together and considers them true American patriots. God Bless the USA!

COMING SOON

Chuck Clowdis is the Managing Director for Transportation for HIS Economics and Country Risk. Mr. Clowdis is a frequent speaker for industry and civic groups on the current happenings in transportation and logistics.

Mr. Clowdis leads IHS consulting projects tailored for both private and public sector clients, such as Federal and State Departments of Transportation, municipal planning organizations and transport service providers, including river barge operators, railroads, air cargo operators, motor carriers, steamship lines and dray operators, as well as providers of third-party logistics (3PL) services. He has assisted transport providers in refining their markets, streamlining their operations and focusing and pricing their service to offer optimum price versus service levels. He often works with transport planners and planning firms on freight flow plans, as well as airport master planning for enhanced cargo operations.

Mr. Clowdis has assisted both Fortune 500 and smaller companies in designing their supply chain operations to achieve maximum service via the most cost-efficient means. In addition to being experts in the various modes of transport, the team Mr. Clowdis leads provides consultation on commodity flows and commodity transport throughout North America.

Prior to joining IHS, Clowdis served as a senior vice president of marketing and national account sales at TNT North America and senior vice president of marketing at Transcon Lines, Inc. He also has held other executive positions with major transportation organizations. He was an executive consultant for the national transportation practice of Ernst & Young LLP from 1983 until 2000. Mr. Clowdis formerly served as chairman and president of the American Trucking Associations’ Sales & Marketing Council, for whom he authored the best-selling book, “The ART of Giving Quality Motor Carrier Service,” and also wrote, “The Driver Makes a Difference.” He has contributed to several other books and authored white papers and trade magazine articles on transportation, supply chain activities and logistics. Mr. Clowdis holds degrees from Young Harris College, Young Harris, Ga., U.S., and University of Georgia, Athens, Ga., U.S.

Kristie McCrary is an attractive, articulate, seasoned executive with 21 years experience in making things happen where others were not able to. She is one of those unusual people who not only arranges for others to appear on TV but has been personally featured in bumper segments herself.
http://www.cbn.com/tv/1412974990001

Kristie is trusted and respected by the top people in the TV industry reporting directly to Pat Robertson, CBN Chairman where she was recognized with the 2009 Presidents Award for Excellence for outstanding performance demonstrating, innovation, integrity and excellence. As Special Events Coordinator for the Christian Broadcasting Network, Kristie was responsible for the Development of dozens of programs, guest lists and ideas for the 700 club and the creation and development of new fundraiser ideas and events Resulting in an increase of 83% in giving.

Kristie manages people and is known as the “Idea Jedi” filled with new ideas. She developed and led the implementation of a live 2008 Webcast event featuring Dr. Pat Robertson, Gordon Robertson and Terry Meeuwsen of the 700 Club. She also had the coveted responsibility of kicking off the 2009 SuperBook Premier night. http://www.cbn.com/tv/1412974990001

Kristie has the innate ability to open doors, cultivate new partnerships and sustain & re-establish relationships with part partners, film pr
oducers and PR relationships, which she did with I am Second www.iamsecond.com and 3Partners. She negotiated deals with the top executives of firms such as: FOX News, ABC,O Magazine, NBC Today Show,
Socrates in the City-Eric Metaxas, the Q and others. She was also responsible for the planning and implementation of the 911 Ten Year Anniversary Dinner and program for 330 guests. Recruiting and hosting featured 9/11 Survivors and speakers: Lt. Col. Brian Birdwell-Pentagon Survivor and Sujo John – North Trade Tower survivor. Both films are at iamsecond.com. She was entrusted with setting up high-profile back to back events in Manhattan with Pastors of large Churches and media affiliates.

“Kristie is the most organized person I think I have ever met. She could organize a bowl of spaghetti and get it all straightened out. She is amazing.”
Governor Mike Huckabee

Kristie has a passion for people and understands the dynamics of relationships. She has been called the “Hope Whisperer” for her ability to put the spin on anything. Some of the outstanding celebrities and sports figures she was able to bring on were:

Clayton Kershaw:
LA Dodgers Ace Pitcher, Gold Glove Winner & MLB All Star

Kathy Ireland:
Supermodel Worldwide

Matt Kemp:
LA Dodgers, Center Fielder, two time Gold Glove Winner

Brady James:
Dallas Cowboys & Houston Texans

She holds a B.S. in Telecommunications from Oral Roberts University
where she was on the National Deans List and Presidents Council, served in the Student Senate and was voted Student Body Vice President for 2 ½ years. Additionally she has taken steps to keep abreast & ahead of the curve with courses such as: Executive Coachingby Elaine Morris and Ultimate Leadership by Dr. John Townsend.

Linda Moak is a former dental hygienist and homeschooling grandmother. She has been involved with Constituting America since its inception. Linda is the founder of one of Constituting America’s first Patriot Clubs, and her grand daughter, Halley Moak, was the first winner of Constituting America’s We The Future poetry contest in 2010. Linda’s mother was Constituting America’s first Senior Essay winner in 2013. Linda lives in Colorado. She enjoys horses and reading…especially history. Linda loves to travel, snow ski, hike and occasionally golf.

I’m originally from West Memphis, Arkansas, but Corsicana, Texas is my home. I have a Bachelor of Science degree in Accounting from University of Arkansas, and I am a Certified Public Accountant. I have 5 children and a wonderful husband Bob.

Our family business is Collin Street Bakery. And we have M Crowd restaurant group with Mi Cocina, Taco Diner, and Mercury restaurants.

I stay busy with family and my cattle and quite a bit of traveling.

Pam Pryor is the president and owner of Pryor Works – a public affairs firm that focusses on communication, strategy, marketing and training. With both political and corporate clients, she teaches organizational skills and team building such as StrengthsFinders, for which she is Gallup-certified.

She taught speech communication on the university level and was a television news anchor and reporter. After having her own radio talk show in Oklahoma City, she moved to Washington, DC where she served as Representative J.C. Watts’ chief of staff in his leadership office of the U.S. House. Named as one of the hundred most powerful women in Washington, Pam has held a number of appointments.

After Watts’ retirement, she spent time in the faith and community-based public affairs world and built capacity for several organizations through We Care America. She also helped launch an organization preserving religious freedom.

She served as the RNC liaison for the McCain campaign and later launched Sarah Palin’s political action committee.

She has worked coalitions and collaborations in the issue campaign space from health care to spending to energy. During the 2012 election cycle, she ran the largest non-candidate, non-party grassroots field team made up of more than 9 coalition groups in 16 states. At that time, she also helped to stand up the training organization that taught all of the field directors. She has worked for Freedom Partners and Philanthropy Roundtable.

Being a daughter of first generation Italian-Americans, she loves to cook and entertain and talk about people’s strengths every chance she gets.

Mr. Roper graduated in 1982 from the University of Missouri in Rolla with a Bachelor of Science degree in Petroleum Engineering.

Mr. Roper has 31 years of experience in the natural gas and oil and gas production business. After 7 years in various engineering and business positions with Tenneco Oil Company and various affiliates of Tennessee Pipeline, Mr. Roper joined Aquila Energy in 1989 in Transportation and Marketing. In 1990, he became Vice President of Marketing as part of the acquisition of Clajon Gas Company – a large gatherer of Austin Chalk gas. In 1993, this operation completed a successful IPO and Mr. Roper was Managing Vice President.

Mr. Roper joined Sid Richardson Carbon & Energy Co. in 1998 as Sr. Vice President managing the growth, development and operation of Sid Richardson Energy Services (SRES). In March 2006, Mr. Roper joined Southern Union Energy Services as Sr. Vice President upon Southern’s acquisition of SRES. In January 2007, Mr. Roper was appointed President of Southern Union Gas Services, retiring from this position in June 2007.

Mr. Roper is President of BOPCO, L.P. and has held this position since July 2007.

Phil Rosenthal graduated from WVU in 1964 with a business management degree. He has been the President of Nationwide Credit Corporation, a third party debt collection agency, since 1970. Under Phil’s guidance, the company continues to grow and prosper.

The collection industry’s trade association, American Collectors Association International (ACA) elected Phil as an officer in 1996 and Phil because its president in 2000. Phil was awarded a number of ACA honors for his diligent work, knowledge and service to the collection industry.

Phil has also been a member of the Virginia Collection Agency (VCA) since 1972 and served in all positions within the association.

While Phil grew his company and became active within the collection industry, he did not limit all his attention to business. Phil has also serves on the Fairfax County Community Action Advisory Board, Fairfax County A. Heath Onthank Advisory Committee and Good Shepherd Housing. He is deeply committed to help our area’s low-income families in their struggles of finding adequate housing, food and caring for their children. The Fairfax County of Fire and Rescue Department has a volunteer division, Firefighters and Friends to the Rescue, which helps underprivileged children. For a number of years Phil has participated in their various drives: school backpack, coats, shoes, haircuts and holiday toys. Recently Phil was awarded the Governor’s 2013 Virginia’s Fire Service Award for Excellence in Virginia’s Fire Service Support – Private Sector.

W. Dennis Stephens is a government affairs counselor at K&L Gates. He previously served as a senior staff member for several House Republican members, including former Majority Leader Dick Armey. Dennis has more than 35 years working in Republican campaigns, policy, and political matters including more than 19 years experience as a Republican lobbyist.

Dennis works on a wide range of public policy issues including tax, technology, foreign policy, and transportation on behalf of Fortune 500 companies, associations, and small businesses.

Dennis has worked closely with many Republicans in the House and Senate including members of the Republican Study Committee. He has especially close relationships with the House Republican leadership and senior staff as well as many of the incoming freshmen.

In addition, Dennis has worked closely for more than two decades with every leading conservative activist and grassroots organization including The Heritage Foundation, Americans for Tax Reform, FreedomWorks, Americans for Prosperity, and the Family Research Council.

Dennis is very active in the conservative movement and is a regular speaker for the Leadership Institute Capitol Hill Staff School. He is also consulted regularly by Republican elected officials to review both policy issues and electoral strategy and tactics.

Prior to working on Capitol Hill, Dennis spent three years in the second term of the Reagan Administration, including the Office of Presidential Personnel in the White House.

Author of How to Raise An American Patriot, Making it Okay for Our Kids to Be Proud to Be American, blogger, podcaster and editor for several sites, and Chief Content Creator for Sunrise Business Consulting, her own company. Also currently working full-time as the Local Outreach Director for the largest church in Colorado.

She has done mission work in Africa and Asia and ran for the Colorado State House in 2014. She has been married to her husband for almost 10 years and is a mom to 5 kids. Her family lives in Boulder County, Colorado where they enjoy running, obstacle course racing, hiking, and camping and they have a flat-coated retriever named Eddy.

Cathy Tripodi is the director of business affairs at the North Carolina Department of Transportation. Prior she served as the director of energy for former Governor Mitch Daniels, and the Indiana Economic Development Corporation, and lead the state’s efforts to attract jobs in energy and automotive advanced manufacturing sectors and assisted existing Indiana companies to grow their investments.

Cathy also served as a policy advisor to the chairman of the Federal Energy Regulatory Commission and the secretary of the U. S. Department of Energy, under President George W. Bush, where she researched, analyzed and prepared energy policy recommendations and provided subject matter expertise.

Cathy has a Bachelor of Science in Business Administration from Villanova University, Philadelphia, PA.

COMING SOON

Matthew McNey, 21, was born in Columbia, MD; however, he was raised in College Park, Burtonsville and Laurel. As a product of the American Dream he was instilled with strong religious convictions, hard work and dedication. He was not born into a rich family; his was a family best characterized as middle class, a family battling with drug addiction and alcoholism. Matthew goes to school and works full time with plans to go to Harvard Law and Harvard Business School to earn a JD and MBA, and to become a corporate attorney. He has been involved in politics since he was 13. He joined the Democratic Party when he was 16, and eventually became the President of the Maryland Federation of College Democrats.

Amanda Tesarek, 19, Best College Short Film Winner, is from Superior, Wisconsin, and attends Columbia University in New York City. She is currently a sophomore, and plans to pursue a double major in biochemistry and political science and a minor in Arabic language. Her extracurricular activities have included student government, newspaper, and improvisational comedy. Amanda was especially inspired to enter this contest after attending the American Legion Auxiliary’s Girls State and Girls Nation programs, which taught her the importance of patriotism and appreciating those who serve in the armed forces.

Juliette has been able to learn from her mother’s power to prevail while sharing many of the same life interests. Juliette wrote the bestselling book Our Constitution Rocks!(HarpersCollins/Zondervan) at age 12. Our Constitution Rocks, currently in its second printing with over 50,000 copies sold, is endorsed by Former First Ladies Laura and Barbara Bush, President Clinton’s White House Counsel Jack Quinn, constitutional scholars, and many other political leaders of both parties. At age 16, Juliette Turner’s second book was published: Our Presidents Rock! (HarpersCollins/Zondervan) Our Presidents Rock brings American presidents to life for America’s future generation —using fun anecdotes and an engaging sense of humor to inspire young Americans to learn about leadership and history. Juliette’s new novel, That’s Not Hay In My Hair, will hit the shelves March 8, 2016 (Zondervan).

Juliette Turner is the National Youth Director of Constituting America, a group founded by her mother and co-chaired with Cathy Gillespie that is dedicated to educating Americans about the founding documents. Juliette reaches youth across America with her engaging books, motivational speeches, entertaining videos and media interviews. Juliette was the youngest author ever to speak at Mt. Vernon’s George Washington Symposium, and was recently one of four featured authors at the Dallas Celebration of Reading, along with Senator Kay Bailey Hutchison, Mark Shriver and ABC’s Byron Pitts.

As a dynamic duo, the Turners have been speaking to groups around the country, mixing pop culture and American history to engage apathetic citizens to get engaged. Beyond their dedication to the country, the Turners love spending time with each other; Juliette enjoys farming with Janine on the longhorn cattle ranch, helping Janine on the set of her recent films, co-recording an album with Janine, attending church with Janine, and working side-by-side on Janine’s radio show.

Austin Dobbs is a remarkable young man whose high school attributes, achieve ments and character mirror those of Turner Maurice Gauntt, Jr.’s. Dobbs was Valedictorian of his graduating class from Quitman High School in Quitman, Texas with a 5.4 grade point average. He was Captain of the football team and Captain of the track team. He received All-District Honors for his positions as wide receiver and defensive back and was named First Team Academic All-State as well as serving as Treasurer and Vice President of the Fellowship of Christian Athletes. Academically, in addition to being Valedictorian, he was President of the National Honor Society, President of the Debate Club, Student Council Vice-President and Senior Class President. He was a State Qualifying Debater for his junior and senior seasons, deemed as one of the top five debaters in the state of Texas and was the State Silver Gavel winner as 2nd in the State of Texas 2013. He received countless academic and character awards within his community. His church and community ser- vice is astonishing with 775 hours served, which includes Program Director of DASH – Drugs, Alcohol, Safety, and Health.

Dobbs is graduate of Baylor University and is currently serving as an officer in the United States Air Force. He adheres to the principle that to whom much is given, much is required and has dedicated himself to public service. Having been recognized as the inaugural recipient of Turner Maurice Gauntt, Jr Award, Dobbs has sought every day to live the life of service, leadership, and high character of the awards namesake. He has served in key leadership positions throughout college and in the military and has been a member of the Youth Advisory Board since its inception

Laney Kraus-Taddeo, 17, Best High School Short Film Winner, lives in Park Ridge, Illinois, and is currently a senior at Maine South High School. She has worked as a professional actress since the age of nine, appearing in both live theater productions and short films. In high school she discovered a love of video and film production and has written, conceptualized, shot, directed and edited numerous short films, and has also directed live sports broadcasts and performing arts presentations. Proud to be this year’s short film winner, Laney is also an award-winning writer and editor with her high school newspaper, is the Boys Varsity Basketball video coordinator, and is active in her community. She will be attending college in the Fall of 2015 and plans on pursuing a double major in film production and theater.

Nic Downs, 20, is from Dana Point, California. He will begin his junior year this fall at Point Loma Nazarene University in Southern California. He loves writing, foreign languages, people, and cultures, and always searches for ways to learn more in these areas. Excelling in Italian and French, he has tutored at Saddleback College and has also worked privately, teaching Italian to missionaries bound for Italy. He has participated in mission trips to Spain, Africa, and the Caribbean, along with family expeditions throughout the world. Over the last few years, Nic has taken a keen interest in politics, and is especially passionate about the Constitution and the issues that threaten its existence. In addition, he recently attended the Christians United for Israel (CUFI) Summit in Washington, D.C.

Jewel Gilbert, 20, Best College Speech Winner, is from Easton, Pennsylvania and a Freshman at Muhlenberg College. He is extremely grateful to have had his speech chosen as the Winner of Constituting America. Jewel has three passions: To serve God, play football, and perform with Sing For America. Sing for America is a charitable group founded by the Gilbert family in 2005. Performing up to 80 performances a year, stretching from Memphis to Maine, they do it to show appreciation for the Military families sacrificing so much for us. In 2011, Sing For America evolved as an entity striving to bring light and truth to the community through the arts in many different ways. Sing For America Productions was born, and since has done 8 Broadway style musicals incorporating professional and amateur talent under the slogan “The Arts Are Color Blind.” Out of the 224 cast members involved with SFAP, half of them are minorities. Many of the actors had their very first experience on stage with us. Sing For America has been able to donate over $40,000 to help military families in need by paying rent, heating bills, food, whatever they may need. www.SingForAmerica.com.

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Lindsay Culpepper, 11, Best Poem Winner, lives in Maylene, AL, just south of Birmingham. She is a sixth grader at Evangel Classical Christian School, where she enjoys studying science, Latin, and history. In her free time, she likes reading, writing, art, horseback riding, and playing basketball. An animal lover, she has attended Zoo Camp at the Birmingham Zoo each summer for the past four years. She recently started serving in the children’s ministry at her church, assisting with the children’s worship service. In the future she hopes to become a writer, a nature photographer, or a veterinarian.

Anya Ambarish, 10, Best Elementary School Poem Winner, lives in Dulles, Virginia. She goes to Rosa Lee Carter Elementary school and is in the fifth grade. Her favorite subject at school is reading, and she also enjoys science and social studies. She is passionate about poetry, writing, reading, tennis, basketball and ping-pong. Many of her short stories and poems have been published in various books and websites. She aspires to become a lawyer or a writer.

Maryem Bouatlaoui, 10, Best Emblem Winner, is a resident of Philadelphia, Pennsylvania. She was born in Morocco. Maryem attends Henry W. Lawton Elementary School. She is involved in a lot of afterschool programs like The Choir Club, Patriots Club and Environmental Club. Maryem also enjoys drawing and hopes to become a doctor when she grows up.

Halley is 16 years old, and enjoys history and horses. She was a Best Poem winner in Constituting America’s inaugural year, and won Honorable Mention in Middle School for her song about the Bill of Rights.  Halley initiated Constituting America’s Colorado Patriot Club.  She lives in Estes Park, Colorado where she participates in 4-H, her youth group “The Huddle,” Rooftop Rodeo and the Estes Park Equestrian Club. An avid rider, she is an IEA team member, owns two quarter horses, and competes in the Colorado Hunter/Jumper Association circuit with her retired off track Thoroughbred, My King.

COMING SOON

COMING SOON

Courtney Janecka is the best high school song winner for 2020!

Click below to listen to Courtney’s song!

COMING SOON

Laurel Asness has been active in many charitable endeavors including autism research, education, and many Nebraskan specific charities. Along with her husband Cliff, Managing Principal of AQR Capital Management, Laurel has helped advance think tanks focused on national security and education advocacy groups designed to help close Connecticut’s achievement gap.

Laurel previously worked in both the Asset Management and Fixed Income divisions at the global banking firm Goldman Sachs. She also worked at Christie’s, the fine arts auction house, in New York City.

She received her Bachelor of Arts from Boston University and Master of Social Work from New York University. Laurel currently resides in Greenwich, Connecticut with her husband and four young children.

William J. Bennett is one of America’s most important, influential and respected voices on cultural, political, and education issues. A native of Brooklyn, New York, Bill Bennett studied philosophy at Williams College (B.A.) and the University of Texas (Ph.D.) and earned a law degree from Harvard. He is the Washington Fellow of the Claremont Institute and a Senior Advisor to Houghton Mifflin Harcourt.

Over the course of his professional life, in education, government and the private sector, Dr. Bennett has succeeded in a trifecta of American institutions. He brings broad and deep experience achieved from a unique series of successes in several distinct fields: He is an award-winning professor in academia, having taught at Boston University, the University of Texas and Harvard; he is a three-time confirmed executive in the Ronald Reagan and George W. Bush administrations including holding two cabinet-level positions, Secretary of Education under Ronald Reagan and the Nation’s first Drug Czar under the first President Bush; he is the author of 20 books, including two New York Times Number One best sellers and two of the most successful books of the 1990s; he is the co-founder and served as the first Chairman of K12, Inc., a very successful online education company; and he is the host of the number seven ranked nationally syndicated radio show, Morning in America.

In his various roles, Dr. Bennett is perceived—even by his adversaries—as a man of strong, reasoned convictions who speaks candidly, eloquently, and honestly about some of the most important issues of our time.

Dr. Bennett’s latest book is The Fight of our Lives: Knowing the Enemy, Speaking the Truth & Choosing to Win the War Against Radical Islam. His three volume set of the history of the United States entitled America: The Last Best Hope, has been widely praised. The volumes have been adopted for school use in the State of Indiana and the City of New York, and are currently being adopted by other school systems around the country. As a communicator, Dr. Bennett has received rare acclaim. In 2002 he was named by focus groups and leading analysts the “Best Communicator of 2002,” and the most well-received public commentator on the issues of “pride, patriotism, faith, and moral conviction.” In April of 2005, the Sunday New York Times named Dr. Bennett the “leading spokesman of the Traditional Values wing of the Republican Party.”

Although he is a well-known Republican, Dr. Bennett often has crossed party lines in order to pursue important common purposes. He has worked closely with Democratic leaders such as Senator Joseph Lieberman to fight the decline of popular culture and to end worldwide religious persecution.

Thanks to his government positions, his writings and speeches, and thousands of media appearances, William Bennett has extraordinary influence on America’s political and social landscape. He now appears exclusively on cable television on CNN. He has been named one of the most influential individuals in America. He, his wife Elayne, and their two sons live in Maryland.

Dr. Bruce Cole served on Constituting America’s National Advisory Board and as one of our artwork judges since our founding 2010. We are incredibly indebted to Dr. Cole for his advice and guidance when we began Constituting America and are proud to keep him in our memory and h0nor him on this page.

Dr. Cole was the President and CEO of the American Revolution Center (ARC), the first national institution devoted to exploring the history and continuing impact of the American Revolution. Before coming to ARC, Cole served as the Chairman of the National Endowment for the Humanities (NEH), where he managed a budget of $150 million and a staff of 170 and was responsible for awards totaling over $800 million dollars. Appointed by President George W. Bush and unanimously confirmed by the Senate in 2001 and again in 2005, Cole was the longest serving Chairman of the NEH. Under Cole’s leadership, the NEH launched key initiatives, including We the People, a program designed to encourage the teaching, study and understanding of American history and culture, and the Picturing America project, which uses great American art to teach our nation’s history and culture in 80,000 schools and public libraries nationwide. He also created the NEH’s Digital Humanities Initiative and Office which made the Endowment a national leader in this new frontier of humanities access and knowledge. Under his tenure partnerships were developed with several foreign countries, including Mexico and China.

Cole’s connection with the Endowment began when he received an NEH fellowship. He subsequently served as a panelist in NEH’s peer review system, and then as a member for seven years of the National Council on the Humanities, the presidentially appointed and senate-confirmed 26-member NEH advisory board. Cole came to the Endowment in December 2001, from Indiana University in Bloomington, where he was Distinguished Professor of Art History and Professor of Comparative Literature. In 2008, he received the President’s Medal from the University for “excellence in service, achievement and teaching.” In 2006, Governor Mitch Daniels awarded Cole the Sagamore of the Wabash, which recognizes individuals who have brought distinction to the state of Indiana.

The medal is one of the highest honors the President can confer upon a civilian, second only to the Presidential Medal of Freedom. Earlier in 2008, Cole was decorated Knight of the Grand Cross, the highest honor of the Republic of Italy.

Jeremy Kinney is the President of Kinney Oil. He is the former Chairman of Opera Colorado, and currently serves as an Honorary Director of Opera Colorado. Mr. Kinney is the current Chairman of the Tesoro Foundation, doing business as the Tesoro Cultural Center (Tesoro means “treasure” in Spanish), whose mission is to protect and make available to the community the artistic treasures of the American past, with a special focus on the opening of the American Southwest. Mr. Kinney is also one of the founders of the Scientific Cultural Facilities Districts of Colorado, a special tax district in the Denver metropolitan area that supports art, culture, and science organizations to enrich the community. Mr. Kinney is a graduate of Yale University and received an MBA from Harvard. He is married to the former Holly Arnold.

Anita B. McBride was appointed as Executive in Residence at the Center for Congressional and Presidential Studies at American University’s School of Public Affairs in April 2010. Mrs. McBride was the committee chair for the “The Legacies of America’s First Ladies” conference held in March 2011, which examined both the powerful job and the women who, though unelected and unpaid, devoted themselves to it. “It’s a topic near and dear to my heart,” said Anita McBride.

From 2005 to 2009, she served as Assistant to President George W. Bush and Chief of Staff to First Lady Laura Bush. She was responsible for the First Lady’s policy, press, correspondence, scheduling and advance, speechwriting, and social offices and directed the staff’s work on the wide variety of issues in which Mrs. Bush was involved. As a senior member of President Bush’s staff, Mrs. McBride was responsible for working with West Wing policy advisors to coordinate the First Lady’s efforts in support of specific presidential policies and initiative including global health and education and human rights.

Mrs. McBride’s White House service spans two decades and three administrations. She joined the Reagan Administration in 1984. From 1987 to 1992, Mrs. McBride was Director of White House Personnel under Presidents Reagan and George H. W. Bush. Mrs. McBride also served as Director of the Speakers Bureau at the United States Information Agency in 1992. Under President George W. Bush, Mrs. McBride served as Special Assistant to the President for White House Management. From 2001 to 2004, Mrs. McBride served in the State Department, where she was Senior Advisor to the Secretary and White House Liaison from 2001 to 2003 and then Senior Advisor in the Bureau of International Organizations in 2004. Mrs. McBride was a member of U.S. delegations to the UN Commission on the Status of Women in 2002, the UN Commission on Human Rights in 2003, and the UN Special Session on HIV/AIDSin 2006. Mrs. McBride’s private sector experience includes serving as project manager of the Smith Kline Beecham Foundation’s flagship philanthropic program, Science in the Summer. Mrs. McBride is a member of the U.S.-Afghan Women’s Council, a public-private partnership between the U.S. and Afghan governments, Georgetown University, and private-sector institutions. In 2008, Mrs. McBride was honored by the Afghan government for her commitment to Afghan issues. Mrs. McBride is a Member of the Board of Directors of the National Italian American Foundation and also serves as a Member of the Advisory Committee for the Mothers Day Every Day Campaign, which is a maternal and child health advocacy organization chaired by Ann Veneman and Donna Shalala.

Mrs. McBride received her B.A. in International Studies from the University of Connecticut in 1981, and studied international relations and foreign languages at American University in Washington and the University of Florence in Italy. Mrs. McBride is recipient of the National Guard and Reserve’s Patriot Award and the University of Connecticut’s President’s Award of Distinction.

Mrs. McBride was appointed to the J. William Fulbright Foreign Scholarship Board by President George W. Bush in January 2009.

Suzy Pence has enjoyed participating in the educational, philanthropic, cultural and political affairs of the Washington D.C. region for over forty years.

Suzy appreciates and supports multiple efforts to enhance the education of America’s younger generations. She has been active in building the new law school library at American University, as well as various construction campaigns at the Langley School (McLean, VA). With her husband Bob, a real estate developer, Suzy has created study abroad and scholarships for foreign travel for over 70 high school, college, law school, and graduate students.

Suzy, in support of Republican Congressional and Senate candidates as well as those for state and national office, has hosted many fundraising events in her home.
On a cultural level, Suzy is a member of the International Committee of the John F. Kennedy Center for the Performing Arts. She particularly enjoys supporting the programs and performances of the Shakespeare Theatre (Washington D.C.) and the Wolf Trap Foundation (Vienna, VA). The Pences are sincerely honored to serve as sponsors of many initiatives in support of the men and women of the Armed Forces of the United States.
Suzy received both her undergraduate degree and an M.L.S. from the University of Maryland. Suzy and her husband Bob, a real estate developer, live in Georgetown, Washington D.C. They have three sons and seven grandchildren.

Jeri Thompson is a stay at home mom, who in between car pools, play dates and classroom projects, provides commentary for a number of radio, TV and online outlets. Topics often include policy and politics in the context of how such things affect moms and families. She can frequently be seen on Fox News shows, including regular appearances on “Hannity.” She served as a co-host on the “Fred Thompson Radio Show,” something that was unavoidable because, first, former Sen. Fred Thompson is her husband, and second, the show was broadcast from their home studio.

For many years, Jeri worked as a communications and political consultant in Washington, D.C. She worked at the Republican National Committee, the Republican Senatorial Conference, Burson-Marsteller and the law firm of Verner Liipfert.

Jeri graduated with a degree in English literature from DePauw University in 1988. She currently serves on the nominations board of the Susan B. Anthony List, and has been involved in a number of political and philanthropic fundraising efforts over the years. She and Fred live in the Washington, DC area, with their two children, Hayden and Sammy.

Republican President Dwight Eisenhower reputedly said that appointing Chief Justice Earl Warren and Justice William Brennan were among his biggest mistakes as president as they helped usher in a wave of liberal jurisprudence at odds with Eisenhower’s conservative philosophy.  Republican President George H.W. Bush might have said the same about Justice David Souter for the same reasons.  Finally, Republican President Ronald Reagan would have agreed that Justice Anthony Kennedy surprisingly became a swing vote who could lean left.

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In 2011, the Supreme Court decided Brown v. Entertainment Merchants Association (EMA). A California law prohibited the sale of violent video games to minors and required labelling of content and designation of suitable users. Parents would still have the choice to buy video games deemed violent and give them to their children. The law was challenged as violating the free speech rights of minors. Without getting into the raw details, as described in the state’s brief and acknowledged by some of the justices, these games invited the players to torture, murder, and humiliate characters. The attorneys for the purveyors of this entertainment assured the justices that such displays of violence were a traditional teaching tool for America’s youth, and that, unless children have unrestricted opportunity to purchase these materials, freedom of speech would be devastated.

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Does the Constitution Give Americans the Right to Vote Without Photo Identification?

In 2005, the State of Indiana passed a state law requiring that most Indiana voters who voted on Election Day would have to show government-issued photo ID before voting. The law provided an exception for those who lived in senior centers, and provided an alternate method of voting if you lost, forgot, or could not afford to get a photo ID. Note: The law also provided free state photo ID’s to those who did not already possess an Indiana driver’s license.

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Chris Foster, a descendent of President John Adams, is an independent insurance agent with Brown & Brown; past president of W.R. Reed & Company in Portland, Oregon. A graduate of Oregon State University, Foster holds a Bachelor of Science degree in Business Administration with a minor in Science and has completed post-graduate studies in business. He is a former major in the Oregon Army Reserve and a Leadership Graduate of Oregon Military Academy.

Mr. Foster serves as a board member for Citizens for Local Accountability (COLA) in Lake Oswego, Oregon. He is precinct committee person for Clackamas County, Oregon, elected in 2010, and has distributed 4,000 copies of the U.S. Constitution and Declaration of Independence in 2010. Mr. Foster is also a volunteer fly fishing instructor with the Oregon Department of Fish & Wildlife. His hobbies include fishing, photography, and hunting.

Denise Fuller graduated from Texas A & M with a Bachelor of Science. During her time at Texas A & M, she was the Student Senator for the College of Education. She completed her post-graduate work at North Texas University with a Masters in Education. She taught and developed curriculum for Irving Independent School District (ISD) and for North Lake College.

She has been a member of the Junior League of Dallas since 1997 and has served on the board of Irving Cares. She spends time doing volunteer work with Meals on Wheels, MediSend, and Lift – Literacy Instruction for Texas.

Janice Gauntt is a top selling realtor in Tarrant County, Texas. She was born in San Antonio, Texas and educated at Trinity University. Janice is active in a number of civic organizations in the Tarrant County area.

Robert Gauntt received his BBA from the University of Texas in Austin, where he played Varsity Baseball for the 1983 NCAA Division I National Championship team. He worked for Paine Webber Inc. in New York City and London before entering the University of Texas Graduate School of Business, where he received his MBA in 1990. He joined Goldman Sachs in the summer of 1990 and was directly involved in equity portfolio management for private clients. At Morgan Stanley, Robert was responsible for the management of equity portfolios as well as advising families on asset allocation. Previously, Robert was the Director/President of H.O.P.E. Worldwide in Houston, President of the Board for his local congregation, a former member of the McCombs School of Business Advisory Council at UT and served on the Texas Growth Fund Board.

He currently serves on the board of West University Little League, the Endowment Committee at River Oaks Baptist School, Provision Charter School and serves on the UT Chancellor’s Council Executive Committee. In 2008, Robert was appointed to the Teacher Retirement System of Texas Board of Trustees ($105 billion fund, serving 1.3 ml teachers) and currently serves as Chairman of the Investment Committee.

Remembering Don Hodges:

Constituting America remembers and honors Mr. Don Hodges (1934-2015)
Mr. Don Hodges held the first event for Constituting Amerca, shortly after our launching in 2010. He served on our Advisory Board from 2010 until the day he passed away, January 21, 2015.

Mr. Hodges gave generously to Constituting America, as he did with all of the organizations he supported. He gave financially, but also gave of himself: his time, energy, advice and enthusiasm. We treasure our memories of his positive impact on our organization.

From Mr. Hodges’ Obituary in the Dallas Morning News:
“Donald Wayne Don Hodges, heralded financial advisor, selfless and dedicated counselor, mentor, devoted husband, father, grandfather and great grandfather, faithful Christian servant and staunch American business and entrepreneurship advocate, passed away January 21, 2015 from complications related to a blood disorder. Hodges was a man admired and revered by his industry peers and was loved deeply by his family that includes his wife of 59 years, Freddie, and their children, Camille Hodges-Hays, Craig Hodges and Clark Hodges. Don was a mentor and father figure to countless people over the years including business associates, employees and even his children’s friends. Don had a passion for investing in stocks but he had an even bigger passion for investing in people. He always found and appreciated the best qualities in others. – ”

Read Mr. Hodges’ Obituary HERE

Meg Bakich graduated from the University of Notre Dame with a double major in Economics and French. She worked for Morgan Stanley at the Chicago Mercantile Exchange trading the S & P 500. After having her first child, she resigned from the company to focus on being a full-time mom.

Meg is a member of several organizations including Wipeout Kids Cancer (WOKC), Youth Services Men’s League, Christ the King Altar Society, The Dallas Metropolitan Ballet Guild and La Fiesta de Banderas. She was born and raised in Redwood City, California and currently lives in Dallas, Texas with her husband Huntley, and their five children.

Victoria Bauman has a diverse background in both film and politics. While in Hollywood, her resume includes working as a co-producer, consultant, and fundraiser for several independent film projects as well as DVD specials for Disney and FOX. In the political arena, Victoria has worked to raise money for many of California’s local and national politicians. Most notably was her time spent as a political consultant for Mercury Public Affairs out of their Los Angeles office where she was part of the California political fundraising team headed by Bill Simon for Mayor Rudy Giuliani’s 2008 Presidential Campaign. Victoria worked as Constituting America’s Communications Director during the organization’s first year.

Gregory S. Casey became President & CEO of the Business-Industry Political Action Committee (BIPAC) in 1999. He is a senior partner in the Idaho based consulting company, Veritas Advisors, LLP.

His record of public service includes Legislative Director and Chief of Staff to a member in the U.S. House of Representatives, Chief of Staff to a member of the U. S. Senate, Transition Director for the Governor of Idaho, Interior Transition Team for the President of the United States, Deputy Chief of Staff in the Office of the Senate Majority Leader and as an elected officer of Congress, serving as the 34th Sergeant at Arms and Doorkeeper of the United States Senate where he served as Chairman of both the United States Capitol Police Board and the Capitol Guide Service and on the Board of the Federal Law Enforcement Training Center.

Greg served or serves on the board of several organizations including the Idaho Council on Economic Education, Foundation for Free Enterprise, Boise Futures Foundations, The Executive Committee of the National Council of State Manufacturing Associations, University of Idaho Foundation and The George Washington University School of Political Management.

Greg graduated from The University of Idaho with a degree in Political Science and History, and has completed graduate programs in Legislative Affairs through the Library of Congress.

Greg regularly provides political commentary on national radio and television and is often quoted in such publications as The Wall Street Journal. The Washington Post once referred to him as a “Washington all star.”

Holly Pellham Davis began her career as a model and then an actress where she won roles in many national and international television commercials, television shows and appeared on the silver screen.

Now, a devoted mother of two, Holly has combined her talents, dedication, and passion to raising her family in a clean, fresh, mostly organic home and environment. Fueled by her desire to help others make positive lifestyle choices for themselves, Holly founded, Clean Fresh Living, Inc., which promotes organic, healthy living and educates consumers on making life changing choices for themselves and their family.

She became the national spokesperson for MadeinUSA.com in August 2009 and is dedicated to educating consumers about the importance of buying American-made products in order to help strengthen the U.S. economy.

Holly has been involved with many local charities including chairing events for the Leukemia Lymphoma Society and The Family Place. Holly is a proud native Texan.

Lindi Harvey has more than 25 years as a corporate and government executive and has a wealth of fundraising, program management and business expertise. She has held several senior-level positions in the Federal government including serving as Deputy Director of the National Park Service for the U.S. Department of the Interior and as Deputy Director at the Office of Global Women’s Issues for the U.S. Department of State. In her capacity as Executive Director, Lindi has been selected to lead U.S. Senator Elizabeth Dole’s Women’s Majority Network and for the Combined Federal Campaign of the National Capital Area. In her private sector career she served as Senior Vice President for the Geneva Strategies Division of Citigroup. Beyond her career accomplishments Lindi is a passionate advocate for community service, volunteerism and mentoring, and serves on many boards and advisory councils regarding child development, youth mentoring, health care, women’s leadership programs, and non-profit and charitable organizations. She is a recognized speaker and trainer at local, state, national, and international levels regarding advancement opportunities in civil society, public policy, community service, volunteerism, and entrepreneurship development.

As president of McCauley Logue Communications, Jennifer Logue employs her 20-plus years of broad-based communications experience to help clients expand their influence, amplify their impact and achieve their marketing goals. Her extensive communications experience includes writing for a daily newspaper, editing a quarterly journal and managing communications activities for a number of respected organizations. Companies that have benefited from Jennifer’s services include public broadcasting leader WGBH, the Isabella Stewart Gardner Museum, Cerebral Palsy of Massachusetts, Phoenix International Publishing, the Housing Partnership Network, Hospitality Mutual Insurance and PBS’s respected investigative journalism series, Frontline.

Active in her local community, Jennifer served on the Quincy High School Siting Commission, the Quincy Tourism Advisory Council and the Mayor’s Leadership Council on Homelessness. She is a member and past president of the Quincy Lions Club, a former Registrar of Voters and a member of the South Shore Women’s Business Network.

LaRawn Scaife Rhea grew up in Nashville, Tennessee and was reared around the music industry where her father promoted the careers of Elvis Presley, Jerry Lee Lewis, Johnny Cash, Charlie Rich, and numerous other greats.

She is a graduate of Belmont College with a degree in Marketing and a concentration in Psychology. As a graduate LaRawn served on the Belmont Alumni Board. She has a love of photography and works as a freelance social photographer and journalist. Her work has been seen in many magazines.

LaRawn has worked with many non- profits including serving on the Executive Board of the Nashville Symphony League, The Horticultural Society of Middle Tennessee, Historic Belmont Mansion, The Nashville Ballet, and The Animal Welfare Fund. LaRawn conceived the idea of “The World’s Biggest Baby Shower” that led to Oprah Winfrey coming to the military base at Ft. Campbell to provide a baby shower for the 700+ military wives who were all expecting at the same time. The baby shower was taped and then aired on The Oprah Winfrey show.

She currently serves as Marketing Director for Chartwell Properties, a real estate development firm in Nashville, Tennessee. Her hobbies include reading, photography, travel, baking and gardening. LaRawn and Richard have two adopted rescue puppies, Diamond and Sparkle.

March 9, 1953 – April 18, 2021

Janine Turner and Constituting America’s dear friend, Jocelyn White, passed away on April 18, 2021. Jocelyn was an award-winning TV and radio journalist whose programs aired locally in Dallas-Fort Worth, and have been syndicated regionally and aired nationally on HDNet. Her passions were animal rescue, advocating understanding of autism, gardening and The Constitution!

Jocelyn was an important part of our Constituting America team since day one – she made the second ever donation to Constituting America, right after Janine’s father! Jocelyn continued to be a generous supporter of our Constitution education programs, even serving as emcee and special guest at several of our events.

We will miss her advice, enthusiasm, and most of all her friendship.

Click here to read more about Jocelyn’s amazing life and legacy.

The 2000 presidential election came down to who won Florida. Twenty-seven days after the election, the presidency remained undecided. Surrogates for George W. Bush and Al Gore clashed in a close-quarters fight that seemed to have no end.  Both parties persisted and refused to yield. The media filled nearly every broadcast moment and column inch of newsprint with the maneuvers and shenanigans of both parties. The pursuit of minutia, gossip, and a major scoop drove wall-to-wall reporting of the countless twists, turns, and skirmishes.

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The U.S. Supreme Court’s 2010 McDonald v. Chicago case considered whether the Second Amendment’s protection of the individual right to possess and use privately-owned firearms as affirmed in the Court’s 2008 District of Columbia v. Heller decision also applies to state and local governments.

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The U.S. Supreme Court’s 2008 District of Columbia v. Heller case considered whether the Second Amendment to the U.S. Constitution protects an individual right to possess and use privately-owned firearms.

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District of Columbia v. Heller provided clarity to a long and quarrelsome debate about the application of the Second Amendment. The crux of the case was whether the right to “keep and bear arms” was an individual right or a collective right associated with regulated militias. The Supreme Court (5-4) ruled the Second Amendment an individual right.

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Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, and Alito. Dissenters: Stevens, Souter, Ginsburg, Breyer.

Gonzales v. Carhart is one of those rare cases that highlights the difference an election can make to Supreme Court decision-making. While the Justices of the Supreme Court are (arguably) largely immune from political pressure because they serve for life, they are nominated by Presidents and confirmed by Senates that answer to the People. For this reason, the makeup of the Court is unavoidably a product of the political process, and this process can yield strikingly different results depending on the makeup of the bench.

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In 1827, the state of Georgia passed several acts that affected the Cherokee Nation within Georgia’s borders.  Georgia extended criminal jurisdiction over crimes committed by Cherokees within the Cherokee Nation.  Traditionally and legally, the Cherokee had their own criminal jurisdiction.  The Georgia legislature also declared the Cherokees had no legal title to the land that the state would respect.  Consequently, surveyors were dispatched with military support to begin surveying Cherokee land for development and settlement.  The governor was authorized to take possession of Cherokee gold mines.  All contracts made between Georgia and the Indians were voided.  Georgia legislators believed the Cherokee, in light of events would leave voluntarily.

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Patt Parker is involved in grassroots organizations and serves as the 2nd Vice President of the National Federation of Republican Women (NFRW). Patt has worked as campaign manager for candidates at the local, state and national levels. She became active in grassroots after her retirement as a senior civilian from the Department of Defense. Her earlier career was as a teacher/administrator in Christian schools where she taught history and government. Patt serves on the Legislative Committee of the Calvert County Chamber of Commerce; Calvert County United Way Women’s Initiative, and as Christian Education director of Dunkirk Baptist Church.

Patt’s passion is to train leaders – national and international- and to work with people of all ages to know, appreciate and treasure the founding principles of our nation and in an understanding of the basics of democracy.

Patt received her Master of Science in National Security from the National War College and an MBA from Marymount University. Patt is the daughter, wife of a and mother of a veteran. She is the mother of two sons, and grandmother of four granddaughters. She lives in Dunkirk, Maryland with her husband Geoff and Australian Cattle Dog, Kiwi, and orange tabby cat, Flicker.

Rochelle A. Porto is a Philadelphia public elementary school teacher and the proud single mother of a 24-year-old daughter. A native of Wildwood Crest, NJ, Rochelle completed her education degree at Glassboro State/Rowan University. Upon graduation, she was employed by the American Red Cross in Philadelphia where she began a workplace health and safety education program. She took time off to raise her daughter and returned in 1993 to start a business in educational workplace health and safety and through this found her calling to become a teacher in literacy. In 1999, she began her current career as a public school teacher and finished her Masters in Education at St. Joseph’s University in Pennsylvania. Then in 2009, she earned her Special Education Certification from Holy Family University. Rochelle is a second year candidate in the National Board for Professional Teaching Standards. At school, she is hosting Patriot Clubs for grades 1-6. In the summer she continues her work through the Philadelphia Recreation Department. She is an active member of Constituting America, Saturday Morning in America and the Independence Hall Tea Party Association.

Bryant Pearson was born and raised in Russellville, Arkansas. He was educated at Arkansas State University where he graduated in 1986 with a BS degree in Political Science. In August of 1986 became a missionary to Uganda where he spent 2 years working with college and youth students He also spent time in Ethiopia during the “We are the World” feeding crisis working with the poorest of the poorest. After returning to the states he started his career as a financial professional with Primeria in 1989. In 1990, Mr. Pearson married his college sweetheart and they just celebrated 24 years of marriage. He has a 14 year old son and a 16 year daughter. He has volunteered and worked in the Garland Independent School District for more than 12 years. In 2007 he started The Bowtie Boys and has worked diligently since that time to make a difference in the lives of as many young men as possible.

Hi, my name is Tom McLaughlin and I teach 7th grade Texas History and 8th grade US History at “THE” Barack Obama Male Leadership Academy in Dallas Independent School District. I have 8 years’ experience as a Social Studies Teacher. My previous careers include National Account Manager for Novacopy Inc, Retail Manager for the Texas Rangers and Dallas Stars, Customer Service Manager for Fotoball USA and Pepperidge Farms Route Driver. My favorite quote is by Albert Einstein – “In the middle of difficulty lies opportunity”. That has been true throughout my life.

I began my working career fresh out of Seagoville High School in Dallas ISD by joining the US Navy in July 1978. In my 16+ years serving in the Navy I had the opportunity to visit many different countries throughout the North Atlantic, Mediterranean, Caribbean and South American coast. While in the Navy, I served in a Leadership capacity at most of my duty stations, consistently being placed in a position of training my subordinates. A teaching career was always in the cards, I just didn’t know it. I retired from the US Navy in December 1993 as a Recruiter-in-Charge of Navy Recruiting Station Aurora, Colorado.

After retirement I decided to, as John Babsone Lane Soule stated, “GO WEST YOUNG MAN”. Now I know that most think Horace Greely said it first but check your History books. I went out to California to “see what was there”. The whole time I was out there I kept feeling a tug to “come home”. After finally coming home and working a variety of jobs, including Warehouse Manager for the Texas Rangers and Dallas Stars, I finally settled down to teaching Middle School Social Studies in the Dallas ISD. I have taught 6th grade World Cultures, 7th grade Texas Studies and 8th grade US Studies in my 8 years of teaching.

One of the many highlights in my teaching career includes getting on our local FOX TV stations on the 9 O’Clock and 10 O’Clock news for wearing a Tutu all day for my students. NOTE TO SELF – Do not bet the students if 95% pass the state test that you will wear a Tutu, especially if your Step Daughter works for the Evening News Anchor. I had 100% pass and 40% get Commended. Another highlight was getting to teach at Seagoville Middle School and having some of my students be the children of some of my classmates from Seagoville HS. What a blessing that was.

I now teach at “The” Barack Obama Male Leadership Academy in the Dallas ISD AND I LOVE IT! Our main philosophy here is that we “TEACH AND THEN TEST, WE DO NOT TEACH TO THE TEST”. Our school mission statement is “Develop young men into impactful leaders through the development of their intellectual, moral, physical, social and emotional skills for the global society of tomorrow”. We have all made a commitment to this – teachers, parents and students – and it works. As our Principal, Nakia Douglas, is quick to tell people – “We are who we are and we make no excuses about it”. Parents, Teachers and Students coming together to ensure the student has the best education possible, not only while they are her but getting them prepared for what is to come.

Carol Alexander is an Educational Consultant who served as a project director and co-creator of a web site for youth for the San Jose, CA Police Department and program coordinator/liaison for the law related education program between the Santa Clara County District Attorney’s Office and the San Jose Unified School District. She is the author of several math books for elementary teachers. She currently is the National Federation of Republican Women’s Literacy Committee Chairman and volunteers for Mt. Evans Hospice in Colorado.

Nancy Arnold has been an elementary teacher for more than 30 years, and continues to teach 4th, 5th, and 6th grade Honors Creative Writing at Benchmark School in Phoenix AZ. She is also the author of Patriotic Pups, a children’s book about George Washington and some of his fellow Patriots. As part of her mission to inspire patriotism and to teach about the founding fathers and mothers, Nancy dresses as Martha Washington and presents a historical program at schools and civic organizations. Nancy and her husband have two grown children and two grandchildren. She is delighted to be associated with Constituting America, and to have had a student win one of the poetry sections in last year’s contest.

Melissa Bell began her teaching career in 1991, and has taught on the grammar, middle, high school, and college levels. She holds a Bachelor of Arts in English and a Master of Arts in English Language and Literature from Mississippi College. She became a member of the ECCS faculty in 2004. She and her husband, Wally, have three children–Bonnie, Drury, and Charlie–all of whom attend ECCS. The Bells attend Evangel Church.

When she is not in the classroom or principal’s office, Mrs. Bell enjoys scrapbooking and reading. Her favorite scripture is Ecclesiastes 5:18-19, “Then I realized that it is good and proper for a man to eat and drink, and to find satisfaction in his toilsome labor under the sun during the few days of life God has given him—for this is his lot. Moreover, when God gives any man…his lot and enables him to enjoy it, to accept his lot and be happy in his work—this is a gift of God.”

“Coming to Evangel was a life-changing move for me and my family. At Evangel, we are confident that our children are being taught in a manner that reinforces our Christian values and our philosophy of education. Also at Evangel, I have found a work environment that is unlike any other I have ever experienced. The level of support that teachers are afforded here by our Principal, our Board, and our parents, along with the absolute integrity and order with which all matters are approached, make ECCS a truly wonderful place to teach.”

Carole Challoner was born in Honolulu, Hawaii. As a child she traveled the world with her family while her father served proudly in the United States Air Force. The military lifestyle instilled an appreciation and love of country.

Her father’s 21 years of service in the military came to an end and they made Arizona their permanent home. Arizona State University provided Carole with the tools to become a teacher and begin “inspiring youth”. After teaching for a few years she married and had two wonderful boys to keep her busy. When her boys reached school age Carole went back to teaching. In 1998, she and three fellow teachers founded a charter school, Benchmark Elementary and Preschool. Benchmark is every teacher’s dream. The school continues to be recognized as one of the high performing schools in the state of Arizona.

Love of country, love of learning, and love of community is a daily lesson for all Benchmark students. They are the foundation for producing productive, caring adults.

Barbara (Bobbie) Darroch is a Charter Holder and co-Principal of Benchmark Elementary School in Phoenix, Arizona. It was exciting when one of our sixth grade students won “Best Poem grades 3-6” last year.

As an American she had the privilege of growing up as a child of the world. Her dad was an engineer with an international construction firm so they lived and worked in local communities. When she was in first grade in Johannesburg, South Africa she was taught the third verse to the Star Spangled Banner and the Preamble to the American Constitution with all her Afrikaner classmates. (Interesting that our Preamble spoke to that teacher.) Her Jr. High and High School years in Pakistan, Columbia, Lebanon and Iran really brought home what unique freedoms and opportunities were afforded to Americans that others did not have. Flying into New York City and seeing the Statue of Liberty in the harbor; hearing the Star Spangled Banner; celebrating the 4th of July always makes her heart swell with pride. She is thrilled to be a part of this organization dedicated to educating the youth and adults of our country about the importance and relevance of our Constitution.

James Ingram received his Bachelors of Science from Texas Wesleyan University and a Masters of Education from Texas Christian University. He celebrated 34 years of teaching the fifth grade at Eagle Mountain Elementary in Fort Worth, Texas. During his time there, he was the first recipient of the Elementary District Teacher of the Year award and the Extended Service Award from the Eagle Mountain Elementary PTA. In February of 2007, Mr. Ingram was honored by the Saginaw Area Commerce with the Educator of the Year Award and in May of 2007, the school board passed a resolution to rename the performance stage at the elementary school in honor of Mr. Ingram’s retirement.

In his 34 years, Mr. Ingram taught over 2,000 students. During his tenure he put on many theatrical productions with his students. He began this journey with historical musicals such as 1776, Camelot, and Shenandoah. Janine Turner made her debut on his stage as Martha Jefferson in one of his productions of 1776. His experience culminated in the much-anticipated William Shakespeare’s Romeo and Juliet; a project that had been 25 years in the making. Mr. Ingram is pleased to continue influencing future generations as he joins the Education Advisory Board.

Alyssa Lombardi spent her childhood in Minnesota, moving out east to attend Christendom College in Front Royal, VA. Upon graduating with a B.A. in History, she began teaching at St. Louis School in Alexandria, VA, and remained there for six years. In 2009, she began a new career as a civilian in the United States Coast Guard, as an analyst for the National Pollution Funds Center. Her hobbies include reading, writing, drawing, and simply being active. In her free time, she coaches JV softball for Bishop Ireton High School in Alexandria, VA, and plays on two other softball teams– one for the USCG and another for Fairfax County, VA.

Tim Seymore is the Superintendent of Jayton-Girard Independent School District in Jayton, Texas. In addition, he is the founder of www.wybo.co, a website dedicated to the lost art of “Working Your Butt Off!” He has a wonderful wife, Mandy, and two great kids, Shelby, 17 and Joshua, 14. Running a government entity, while at the same time espousing the necessity of returning to the constitutionally mandated, limited government that our forefathers had in mind, sometimes presents its challenges for Tim. Balancing the need to receive adequate funding from limited tax dollars, while at the same time trying to meet all the mandates the bureaucracy places on the schools is a difficult, but worthy task. Whenever decisions must be made in reference to the aforementioned dilemma, one must remember, “The Kids Must Come First!”

Bill Shelnutt is the Head of Preparatory School at Mt. Pisgah Christian School in the Atlanta suburb of Johns Creek, Georgia. He is a life-long learner and lover of history. Bill is a graduate of Buffalo State University, and has earned both a Master’s Degree in Educational Leadership and an MBA from Oglethorpe University and Reinhardt University respectively. Bill believes, as John Adams did, that “children should be educated and instructed in the principles of freedom”, and to that end he strives to ensure that his students understand our country’s founding documents in order to be more informed and enlightened citizens of our great nation. Bill and his wife have twin toddlers and they enjoy the outdoors and spending time together at home or traveling.

John Whitehurst was born in Poughkeepise, New York, but raised in Marietta, Georgia where he graduated from Walton High School. He earned in BA in history and English from Georgia Southern University in Statesboro, Georgia and is currently working on his MA in history from Georgia State University in Atlanta, Georgia. He has taught history, political science, economics, and English for the past fourteen years at private schools in metropolitan Atlanta. He is currently the history department head at Mount Pisgah Christian School in Johns Creek, Georgia where he teaches US history and AP US history as well as sponsoring student government and the student honor council.

Horace Cooper is a writer and legal commentator. He has appeared on CNN, MSNBC and Fox as well as in a variety of print publications. He is also a Research Fellow with the National Center for Public Policy Research, a Senior Fellow with the Heartland Institute and the Director of Law and Regulation at the Institute for Liberty. From June 2005 – June 2007 he was a visiting assistant professor of law at George Mason University School of Law. While at GMUSL his research focus was on U.S. intellectual property rights policy, the role of the United States Supreme Court in the American constitutional system, political forecasting, the legislative process and federal labor law.

Mr. Cooper has served in senior capacities in the George W. Bush Administration including stints as chief of staff at the Voice of America and the Dept of Labor’s Employment Standards Administration. Horace Cooper previously served as Counsel to the Honorable Richard K. Armey, (Majority Leader of the United States House of Representatives from 1994 – 2002). Mr. Cooper’s interests include current issues involving law and American society, political forecasting, and the changing makeup of the United States Supreme Court.

Jeffrey Reed, founder, music director and conductor of Orchestra Kentucky, also served as music director of the Murfreesboro (TN) Symphony from 2007-2010. He made his European conducting debut in 2003 with the St. Petersburg (Russia) State Symphony and the St. Petersburg Orchestra of Popular Classical Music. In 2006 and 2010, he guest conducted the Charleston Symphony Orchestra in the grand finales of the City of Charleston’s Piccolo Spoleto Festival. In 2007, Reed had the honor of being the first American to conduct the Busan Sinfonietta of Busan, South Korea. He is a 2008 recipient of the Jefferson Award for outstanding public service.

Born in Goshen, Indiana, Reed holds a Masters degree in conducting from the University of Iowa and a Bachelors degree in music education from the University of Louisville. He has also completed graduate work in philosophy and religion and holds a Juris Doctorate from the University of Louisville. He practiced law for nearly ten years before becoming a full-time orchestra conductor. He also served as an instructor at Western Kentucky University, where he taught Criminal Constitutional Law.

Mr. Roff has more than two decade’s experience navigating Washington’s highways and byways, both in and out of government and is currently a contributing editor at U.S. News & World Report, where he writes for the magazine’s “Thomas Jefferson Street” blog and a senior fellow at the non-partisan Institute for Liberty.

At one time the political director of Newt Gingrich’s GOPAC, Mr. Roff planned and directed political education programs training candidates for public office and political activists. Leaving politics for a career in journalism, Mr. Roff spent five years as the senior political writer for United Press International. While at UPI he worked on some of the biggest political stories of the 20th century — including the September 11, 2001 terrorist attacks and the election of George W. Bush in one of the narrowest political contests in U.S. history.

A frequent commentator on politics and public issues, Mr. Roff has appeared on a variety of radio and television programs including “CBS News Overnight,” “Politically Incorrect with Bill Maher,” “The Dennis Miller Show,” “Hannity & Colmes,” “The O’Reilly Factor,” “C-SPAN’s Washington Journal,” and even once appeared as himself on the hit ABC comedy “Spin City.”

Mr. Roff has been quoted in major publications including USA Today, The New York Times, the online version of The Wall Street Journal, The Washington Times, The Christian Science Monitor, and National Review.

A 1988 graduate of The George Washington University, Mr. Roff has lived in Northern Virginia for much of the last 25 years along with his children and his beagle Shaggie.

Steven H. Aden serves as senior legal counsel with the Alliance Defense Fund in its Washington, D.C., office, where he heads litigation efforts to defend the sanctity of human life. Joining ADF in 2008, Aden is admitted to the bars of the District of Columbia, Virginia, and Hawaii (inactive). He is also a member of the bars of the U.S. Supreme Court and numerous federal circuit and district courts. He has practiced law since 1990 and earned his J.D. from Georgetown University Law Center.

William B. Allen, Emeritus Professor of Political Philosophy in the Department of Political Science and Emeritus Dean, James Madison College, at Michigan State University. 2008-09: Visiting Senior Scholar in the Matthew J. Ryan Center for the Study of Free Institutions and the Public Good at Villanova University. He also served previously on the National Council for the Humanities and as Chairman and Member of the United States Commission on Civil Rights. He was recently the Ann & Herbert W. Vaughan Visiting Fellow in the James Madison Program on American Ideals and Institutions at Princeton University.

He has published extensively. Some of his books include Re-Thinking Uncle Tom: The Political Philosophy of H.B. Stowe, George Washington: America’s First Progressive, and The Personal and the Political: Three Fables by Montesquieu. He previously published many other books, journal articles, reviews and encyclopedia entries, including articles in American Journal of Jurisprudence; American Political Science Review; Cardozo Journal of International and Comparative Law; College Teaching; Educational Researcher; Interpretation: A Journal of Political Philosophy; Proceedings: Statistics, Science and Public Policy; Publius: The Journal of Federalism; The Good Society: A PEGS Journal; Rutgers Law Review; and San Diego Law Review.

Dr. John Baker is Distinguished Scholar in Residence at the Catholic University of America Law School. He is Professor Emeritus of Law, and previously the Dale E. Bennett Professor of Law, at Louisiana State University Law School. He has also taught for Georgetown University Law School, Tulane Law School, George Mason Law School, Pepperdine Law School, New York Law School, Hong Kong University, and the University of Dallas. He has been a Visiting Professor at the University of Lyon III (France) since 1999 and has lectured at universities and research institutes in Argentina, Austria, Brazil, Croatia, Slovenia, Vietnam, and the Philippines, where he was a Fulbright Fellow (2006). Professor Baker received his J.D., with honors, from the University of Michigan Law School and his B.A., magna cum laude, from the University of Dallas. He also earned a Ph.D. in Political Thought from the University of London.

In addition to law review articles and book chapters, Dr. Baker’s academic publications include: Hall’s Criminal Law: Cases and Materials and An Introduction to the Law of the United States. He has also published a number of times in The Wall St. Journal. Dr. Baker was a co-founder of Stratfor Inc. He co-authored its first book: The Intelligence Edge.

While a professor, he has been as a consultant to USAID, USIA (now part of the State Department), the Justice Department, the U.S. Senate Judiciary Subcommittee on Separation of Powers, and the Office of Planning in the White House.

Daren Bakst, Esq., is Director of Legal and Regulatory Studies for the John Locke Foundation. In this position, he analyzes and writes about a wide range of issues, including constitutional law, property rights, and regulatory reform.

His op-eds and quotes have appeared in outlets such as the Wall Street Journal, Washington Times, USA Today, National Review Online, AOL News, American Enterprise Online, American Thinker, Chronicle of Higher Education, and The Charlotte Observer. Bakst serves on the Federalist Society’s Administrative Law and Regulation Executive Committee and he is an adjunct professor at Barton College, teaching business law.

Prior to joining the Foundation, Bakst was Policy Counsel for the National Legal Center for the Public Interest in Washington, DC., which recently merged into the American Enterprise Institute.

In 1998, Bakst founded the Council on Law in Higher Education (CLHE), an independent nonprofit organization that analyzes timely legal challenges facing colleges and universities. He still serves as president of CLHE.

A licensed attorney, Bakst earned his J.D. from the University of Miami and his LL.M. in Law and Government from American University, Washington College of Law. Both his B.A. and M.B.A. are from The George Washington University.

James Best is the author of The Shopkeeper,Leadville, Tempest at Dawn, The Shut Mouth Society, and The Digital Organization. James has ghost-written two books, two regular magazine columns, and numerous journal articles. As a conference speaker, he has made presentations throughout North America and Europe.

James has been the COO of Vista Software, The Scottsdale Center for Business Technology, and Grand Circle Corporation. He was chairman of the Curriculum Advisory Committee for College of the Canyons, and a member of the Curriculum Advisory Committee for California State University, Northridge

James now writes full time and lives with his wife, Diane, in Paradise Valley, Arizona.

David J. Bobb is founding director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C. He also serves as a lecturer in political science at Hillsdale, where he teaches courses in American politics to students participating in the Washington-Hillsdale Internship Program.

From 2001-2010 Bobb also served as founding director of the Charles R. and Kathleen K. Hoogland Center for Teacher Excellence, a national civic education program of Hillsdale College. Having earned a Ph.D. in the department of political science at Boston College, Bobb is the recipient of Earhart and Bradley Foundation fellowships, a Weaver Fellowship from the Intercollegiate Studies Institute, and a Publius Fellowship from the Claremont Institute. Formerly he was a research associate at the Boston-based Pioneer Institute for Public Policy Research. He has authored reviews and articles in the Washington Times, Boston Herald, Claremont Review of Books, American Spectator, Perspectives on Political Science, and Modern Age. He is completing a book for publication later this year, Humility: How America Can Recover a Lost Virtue in an Age of Arrogance.

Ms. Janice R. Brenman is a former prosecutor who was in private practice in Los Angeles from 2001 to 2012 representing nearly 8,000 individuals in over 42 states. She has commented in major legal publications on the subject of legal reform and celebrity influence on the legal system. She has also appeared in medical malpractice, products liability, and complex civil litigation, and is well versed in all forms of discovery. From 1999 to 2000, Ms. Brenman was a City Prosecutor and Community Preservationist. She clerked for the Honorable Rupert J. Groh, Jr., of the United States District Court for the Central District of California. Ms. Brenman also worked researching, writing, and editing under a Nobel Prize winning laureate, trained for her first degree black belt with the World Organization, and is fluent in French, Italian, and Spanish, and English.

William Duncan is the director of the Marriage Law Foundation, a legal organization whose mission is providing legal resources in defense of marriage as the union of a husband and wife. He previously served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and a visiting professor at

Brigham Young University’s J. Reuben Clark Law School where he was executive director of the Marriage and Family Law Research Grant. He teaches family law to undergraduates at BYU as an adjunct professor.

Allison Hayward writes widely on election law topics and has been published in a variety of law journals and magazines, including the Harvard Journal of Legislation, Case Western Reserve Law Review, National Review, the Weekly Standard, Reason, the Journal of Law and Politics, Political Science Quarterly, The Green Bag, and the Election Law Journal. She held the position of Assistant Professor of Law at George Mason University School of Law from 2006 to 2010. Hayward has taught constitutional law, election law, ethics, and civil procedure. She was an associate at Wiley, Rein & Fielding in Washington, D.C. and Of Counsel at Bell, McAndrews & Hiltachk in Sacramento, California. Hayward was also Counsel to Commissioner Bradley A. Smith of the Federal Election Commission. Before attending law school, she served as staff in the California legislature and managed a state assembly campaign

She graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis. She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit. Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics. She is an active member of the California and Washington, D.C. bars.

Troy Kickler is Founding Director of the North Carolina History Project and Editor of northcarolinahistory.org. He holds an M.S. in Social Studies Education from North Carolina A&T State University and a Ph.D. in History from the University of Tennessee.

Kickler is currently editor of Nathaniel Macon: Collected Letters and Speeches. He is also writing Black Children and Northern Missionaries, Southern Conservatives, Freedmen’s Bureau Agents, and Freedmen in Reconstruction Tennessee, 1865-1869. He has contributed to the anthology Children and Youth during the Civil War Era (New York University Press, January 2012; James Marten, ed.).

He has presented numerous papers at various conferences and forums, including the American Political Science Association and the Bradley Institute for the Study of Christian Culture.

In addition to contributing to constitutingamerica.org, he has served as editorial assistant for the Journal of East Tennessee History and has written articles and reviews for such publications as American Diplomacy, Carolina Journal,Journal of Mississippi History, Tennessee Baptist History, Tennessee Historical Quarterly, and The Journal of the North Carolina Association of Historians. He has also contributed to Exploring American History: From Colonial Times to 1877; Encyclopedia of American Environmental History; and The Old West: Yesterday and Today.

Kickler also teaches at North Carolina State University.

Professor Joerg Knipprath teaches constitutional law, legal history, jurisprudence, and various business law courses at Southwestern Law School in Los Angeles.

Professor Knipprath’s family immigrated to the U.S. from Germany when he was 10. After high school, he attended Pomona College in Claremont, California, graduating magna cum laude with a major in government. After attending Harvard Law School for one year, he transferred to Stanford University. There, he obtained his law degree and completed the class work and written examinations towards a Ph.D. in political science.

After receiving his law degree, Professor Knipprath worked at Latham & Watkins, a large law firm in Los Angeles, doing business litigation and transactional work. After teaching three years in the undergraduate business law department at California State University, Northridge, he began working full-time at Southwestern Law School in 1986. Since it was established 10 years ago, he has twice received the Excellence in Teaching Award from the school’s students.

Professor Knipprath has published in law reviews and numerous newspapers and periodicals. He is the faculty adviser to the Federalist Society and the Christian Legal Society at Southwestern.

He is married to Michelle Knipprath and is the proud father of seven children.

Marc S. Lampkin has served in leadership positions on the Hill and in state government, in presidential campaigns, and in the private sector. Currently he works for Quinn, Gillespie and Associates. He has been quoted and appeared in numerous media outlets including the New York Times, Washington Post, Boston Globe, National Journal, The Hill, Roll Call, the AP, and Huffington Post.

During his tenure at Quinn Gillespie, he has been involved in several high profile and successful public advocacy campaigns. Most recently, Lampkin led the Strong American Schools 9SAS) issue advocacy campaign (2006-2009), a joint project funded by the Bill & Melinda Gates and the Eli and Edythe Broad Foundations. Lampkin organized and ran the Americans for Better Education (ABE) coalition (2001-2002), supporting President George W. Bush’s education reform plan.

Lampkin has held several senior positions in the United States Congress. He served as Policy Director for the late U.S. Senator Paul D. Coverdell (R-GA)(1999) and General Counsel for the House Republican Conference under then-Chairman John A. Boehner (R-OH)(1995-1998

In his own time, Lampkin has helped raise millions of dollars for nonprofits that support education options for parents and disadvantaged children. He serves on the Board of Directors of Horton’s Kids Inc. and the Boehner-Lieberman Dinner to benefit the Consortium of Catholic Academies in Washington, DC.

Lampkin is a graduate of the College of the Holy Cross in Political Science and Boston College Law School. Lampkin is married to Emily Kertz Lampkin and is the father of three young boys, Marc, Andrew, and James.

Andrew Langer is the President of the Institute for Liberty, an advocacy organization dedicated to fighting the petty tyrannies of government and protecting America’s right to be free. Mr. Langer came to IFL from the National Federation of Independent Business, where he headed that organization’s regulatory practice for six years.

He has testified before Congress nearly twenty times, and is routinely asked by foreign governments to consult on making improvements to their small business sectors.

For the last two years, Mr. Langer has been a leader in the Tea Party Movement. He has spoken at tea party events across the nation, and his organization was a national sponsor of the first 912DC March on Washington, Mr. Langer was a speaker at that event.

The son of an environmental scientist and an epidemiologist, Langer attended the College of William and Mary in Virginia, where he received a BA in International Relations. He also holds a Masters in Public Administration from Troy State University. Mr. Langer’s writings have appeared in both national and international publications. He frequently appears on talk radio programs throughout the country, and has appeared on CNN, Fox News, MSNBC, and Al Jazeera. He is currently authoring a book entitled, “The War on Small Business”.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.

Born and raised in Rumson, New Jersey, he received his A. B. from Kenyon College, graduating summa cum laude in 1973 with a double major in political science and English. He received his M. A. in Liberal Studies in 1998 from the New School for Social Research and his Ph. D. in 2002, also from the New School, where he received the Hannah Arendt Memorial Award in Politics for his dissertation on the political thought of the American presidents of the founding and Civil War periods.

He served as legislative aide to New Jersey State Senator Thomas Gagliano; Assistant for Communications, Office of the Executive Director, NJ Transit Corporation; and as Executive Director of the Monmouth County (NJ) Historical Commission.

Dr. Morrisey is the author of eight books on statesmanship and political philosophy, including studies of Charles de Gaulle, André Malraux, moral relativism, culture and commercial republicanism, pacifism, and regime change. His most recent book, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, is the companion volume to his previous book, Self-Government, The American Theme: Presidents of the Founding and Civil War (Lexington Books, 2004). He is currently working on a study of the geopolitical strategies of Winston Churchill and Charles de Gaulle.

His articles and book reviews have appeared in The New York Times, The Washington Times, The American Political Science Review, Social Science and Modern Society, and Interpretation: A Journal of Political Philosophy, of which he has served as an editor for thirty years.

Joseph Postell is Assistant Professor of Political Science at the University of Colorado-Colorado Springs. He is the co-editor, with Bradley C.S. Watson, of Rediscovering Political Economy. His current research focuses primarily on the constitutional issues and the growth of the administrative state. His articles have appeared in a variety of academic and popular outlets, including the Claremont Review of Books and the Washington Times.

Charles K. Rowley is a Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute.

He has written nine books with his most recent book Never Let A Good Crisis Go To Waste just published by The Locke Institute in December 2010. He has also edited 32 books and published some 200 papers in such scholarly journals as The Journal of Political Economy, The Economic Journal, The Journal of Law and Economics, The Journal of Legal Studies, The Journal of Public Economics, Public Choice, Economica, The International Review of Law and Economics, The Journal of Institutional and Theoretical Economics, The Washington University Law Quarterly and The Independent Review, as well as in edited books.

He was born in Southampton England, taught at the Universities of Nottingham, Canterbury, York and Newcastle Upon Tyne, and held summer fellowships at the Center for Socio-Legal Studies, Oxford University, prior to migrating to the United States to join Jim Buchanan and Gordon Tullock at the Center for Study of Public Choice in December 1983. He co-edited Public Choice between May 1990 and July 2007. He was a Founding Editor of The International Review of Law and Economics from 1980-1987.

Kyle Scott, PhD, teaches American politics at the University of Houston. He has authored three books. In addition to his books he has authored numerous scholarly articles, served as a guest blogger and spoken to audiences of all levels. Kyle taught and coached at high schools in Texas before receiving his Ph.D. in 2005 from the University of Houston. Kyle has taught American Politics, Political Theory, and Public Law at Miami University, University of North Florida, and the University of Houston. In all of his work Kyle seeks to understand how a society can order itself in order to produce justice, liberty, and virtuous citizenry. His current projects pursue these ideals in the political arena as well as in private and public sector management in an effort to reduce conflict that can result from ethnic and cultural differences.

Kyle is also involved in the North Carolina History Project, American Political Science Association, Midwest Political Science Association, Southern Political Science Association, Reviewer for the “Political Research Quarterly” and “Polis.”

Julia D. Shaw studies and writes about American political thought as research associate and program manager for The Heritage Foundation’s B. Kenneth Simon Center for American Studies. Her subjects include the American founding, progressivism and modern conservatism.

Shaw also oversees the content of Heritage’s First Principles educational programming, from the Congressional Fellows and James Madison Fellows programs on Capitol Hill to the internal lecture series of the Center for American Studies.

She is editor of New Common Sense, the weekly e-newsletter of the First Principles initiative, and a contributor to The Foundry, Heritage’s rapid-fire policy blog.

A Texas native, Shaw received a bachelor’s degree in politics from the University of Dallas, where she graduated second in her class and summa cum laude. She won the Willmoore Kendall Award in Political Philosophy, given to the top student in the Politics Department. Shaw also was a Hatton Sumners Fellow through the University of Dallas, a Publius Fellow at the Claremont Institute and a Fellow at the American Enterprise Summer Institute.

She and her husband currently reside in Washington, D.C.

Colleen A. Sheehan is Professor of Political Science at Villanova University, Director of the Ryan Center for Free Institutions and the Public Good, and has served in the Pennsylvania House of Representatives. She is author of James Madison and the Spirit of Republican Self-Government(Cambridge University Press, 2009), co-editor of Friends of the Constitution: Writings of the Other Federalists 1787-1788, and author of numerous articles on the American Founding and eighteenth century political and moral thought which have appeared in journals such the William and Mary Quarterly, American Political Science Review, Review of Politics, and Persuasions: The Jane Austen Journal. She is currently completing a book on Madison’s Voyage to the World of the Classics.

Matthew Spalding serves as Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation. He also serves as project leader of Heritage’s First Principles initiative. The overall objective of First Principles is to reorient the nation’s politics and public policy to the enduring principles of the American founding.

In his latest book, We Still Hold These Truths: Rediscovering Our Principles, Reclaiming Our Future Spalding details America’s core principles, shows how they have come under assault by modern progressive-liberalism and lays out a strategy to recover them.

Spalding is executive editor of The Heritage Guide to the Constitution, a line-by-line analysis of each clause of the U.S. Constitution. His previous books as author or editor include A Sacred Union of Citizens: Washington’s Farewell Address and the American Character; Patriot Sage: George Washington and the American Political Tradition; and The Founders’ Almanac: A Practical Guide to the Notable Events, Greatest Leaders & Most Eloquent Words of the American Founding.

Spalding is a graduate of Claremont McKenna College. He earned a doctorate in government from Claremont Graduate School and has taught American government at George Mason University, the Catholic University of America and Claremont McKenna College. He is an adjunct fellow of the Kirby Center for Constitutional Studies and Citizenship at Hillsdale College.

Spalding’s work on The Heritage Guide to the Constitution earned him Heritage’s prestigious W. Glenn and Rita Ricardo Campbell Award in 2006. Spalding and his wife, Elizabeth, have two children. They live in Arlington, VA.

Lawrence J. Spiwak is President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies, a non-profit organization that studies broad public-policy issues related to governance, social and economic conditions, with a particular emphasis on the law and economics of telecommunications and high-tech industries.

Mr. Spiwak is a prolific author whose scholarly work is frequently cited by policymakers, major news media and academic journals around the world. Mr. Spiwak is also currently listed among the top 2% of authors downloaded on the Social Science Research Network.

Mr. Spiwak received his B.A. from the George Washington University in 1986 (Special Honors, Middle Eastern Studies) and his J.D. from the Benjamin N. Cardozo School of Law in 1989, where he was the international law editor of the Cardozo Moot Court Board and served on the National Moot Court Team. While in college, Mr. Spiwak was selected to participate in the White House’s Presidential Stay in School Program, where he was responsible for delivering classified material among senior Reagan Administration Officials.

A third generation Washingtonian, he, his wife and their daughter live in North Bethesda, MD.

Born in New York City and raised on Long Island, Paul Teller graduated in 1993 from Duke University in Durham, NC, where he got his B.A. in political science. Paul has worked for The Washington Times–National Weekly Edition, the National Center for Public Policy Research, the College Republican National Committee, the Bush/Quayle ‘92 campaign, and the American Enterprise Institute. After completing his undergraduate work, he went right into American University’s Ph.D. program as a Dean’s Scholar in political science, which he completed in 1999.

Shortly afterwards, he became a professional staff member for the Committee on House Administration under Rep. Bill Thomas (R-CA) in the U.S. House of Representatives. In early 2001, Paul joined the staff of the House Republican Study Committee (RSC), where he has done legislative research, analysis, and strategy, as well as coalitions and communications work across a broad range of issues. Now as the RSC’s Executive Director (serving under his sixth RSC chairman) and the Conservative Movement’s point-man on the House side, he sets and implements strategy for the RSC’s policy, communications, and coalitions efforts. The Washington Post recently described Paul as “one of the most influential conservative aides in Congress.”

Paul also helped found, and continues to advise, the House Conservatives Fund. Additionally, Paul was the Senior Policy Advisor in 2004 for Bill Spadea for Congress (New Jersey-12) and was the President of the Duke Club of Washington from 2008-2010 (and still serves on the Club’s board of directors).

Paul and his wife, Maxine, are the proud parents of a 7-year-old girl and a 4-year-old boy.

Guest Essayist: Joerg Knipprath

During the Senate hearings on his nomination to the Supreme Court, Judge Neil Gorsuch commented, “Justice [Antonin] Scalia’s legacy will live on a lot longer than mine.” Whether or not this is a prophetic remark is too early to tell. However, Judge Gorsuch’s statement recognizes the enormous impact that Scalia has had–and will have–on American constitutional law.

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Guest Essayist: Daniel A. Cotter

Lawrence v. Texas (2003), United States v. Windsor (2013) and Obergefell v. Hodges (2015): The June 26th SCOTUS Trifecta by Justice Anthony Kennedy

On June 26, 2015, the Supreme Court of the United States held a special Friday session the week before end of term to announce its decision in Obergefell v. Hodges, in which the Court held that the “Fourteenth Amendment requires a State to license a marriage between two people of the same sex.”  The Obergefell opinion marks the third of three June 26th Supreme Court decisions since 2003 recognizing human rights and protections for gay people. All three were authored by Justice Anthony Kennedy, making him a hero in the LGBT community.

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Guest Essayist: Tony Williams

Before the 1960s, all states had stringent laws banning abortions.  The women’s movement of the 1960s demanded access to abortion as one of the rights of women. Abortion rights activists began working at liberalizing state laws on abortion since it was a state issue in the federal system.  The advocacy successfully chipped away at several laws, though by the time of Roe v. Wade in 1973, roughly forty states still had strong laws against abortion.

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Guest Essayist: Joerg Knipprath

In June, 1961, the Supreme Court declined to rule on the constitutionality of an 1879 Connecticut law that prohibited the use of contraceptive devices for the purpose of preventing pregnancy, as well as the counseling of such use. The law applied to married and unmarried couples. However, the law had apparently only been enforced once, in 1940, in a test case, where the charges were dismissed after the state supreme court upheld the law. In the more recent challenge, Poe v. Ullman, two couples and their doctor from the Yale University Medical School sought a declaratory judgment that the statute was unconstitutional. The Supreme Court noted that there had been no threat of prosecution by the state, the statute had not been enforced in the past, and contraceptives were freely sold in Connecticut drugstores, so that the case lacked the genuine dispute required by the Constitution for federal court action. Several justices dissented, one of whom, Justice John Marshall Harlan II, would pave the way for the next challenger.

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Guest Essayist: Daniel A. Cotter

Justice William J. Brennan, Jr. (1906-1997): An Associate Justice Who Led the Court and Which is Often Referred to as The Brennan Court

On July 20, 1990, Associate Justice William J. Brennan, Jr. resigned from the Supreme Court of the United States, after serving nearly 34 years (including three months with a recess appointment and two months while his nomination was confirmed).  Only five justices served longer on the Supreme Court and only one justice wrote more opinions.  Brennan was an election year appointment by President Dwight Eisenhower.

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Guest Essayist: Gennie Westbrook

A group of well-known civil rights leaders ran a full-page advertisement, “Heed Their Rising Voices,” in the New York Times on March 29, 1960. The ad described an “unprecedented wave of terror” in police attacks and other government sponsored oppression against peaceful demonstrators in Montgomery and other southern cities. The ad closed with a plea for readers to provide both moral support and financial donations to sustain the civil rights movement because America’s “good name hangs in the balance before a watchful world, the America whose heritage of Liberty these Southern Upholders of the Constitution are defending, is our America as well as theirs.”

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Guest Essayist: Daniel A. Cotter

Hugo Black (1886-1971): The Justice with the Plain Meaning Approach

Hugo Black served more than thirty-four years on the Supreme Court, the fifth longest tenure in the Court’s history.  During his time on the Court, Black developed a reputation as a justice who strongly believed the United States Constitution was to be given its plain and original meaning.

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Guest Essayist: State Representative David Eastman

Is Advocating the Violent Overthrow of the United States a First Amendment Right?

On June 22nd 1940, France surrendered to Germany, and the U.S. House of Representatives passed the Smith Act the very same day. It was believed that the rapid fall of France was due in no small part to subversion by communists allied with Germany. There was concern that U.S. entry into the war might lead to similar subversive plots taking place here in the United States. Most prominently, the Smith Act made it illegal to advocate the violent overthrow of the U.S. government or to form an organization for that purpose. Read more

Guest Essayist: Daniel A. Cotter

Chief Justice William Howard Taft (1857-1930): The Only Former President to Serve on the Supreme Court of the United States

When Chief Justice Edward White died in May 1910, President Warren G. Harding immediately turned to former President William Howard Taft, who had appointed White to the Supreme Court, to succeed White.  Taft served on the Supreme Court for just less than ten years until his resignation on February 3, 1930. Charles Evans Hughes, another justice whom Taft had appointed to the Supreme Court, replaced Taft as Chief Justice, serving in that role from 1930 to 1941. This column explores William Howard Taft’s career and his Supreme Court tenure and legacy.

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Guest Essayist: Gennie Westbrook

Benjamin Gitlow and Clarence Brandenburg would seem to have had little in common, but each was responsible for bringing a case that resulted in an important revolution in interpreting the meaning of free speech.

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For more information on the United States Constitution, our Founding Fathers and National Constitution and Citizenship Day on September 17, check out these websites!

American Historical Theatre: http://ahtheatre.org/america/

The Civics Renewal Network: http://www.civicsrenewalnetwork.org/

National Archives Charters of Freedom-Explore our Founding Documents!
http://www.archives.gov/exhibits/charters/

Federalist Papers: Primary Documents in American History – The Library of Congress Researchers – Virtual Programs and Services
http://www.loc.gov/rr/program/bib/ourdocs/federalist.html

The Constitutional Sources Projects (includes links to the United States Constitution, Federalist Papers, the Papers of John Adams, George Washington, George Mason and much more!)
http://www.consource.org/

Constitution and Citizenship Day-Library of Congress
http://www.loc.gov/law/help/commemorative-observations/constitution-day.php

United States Department of Defense Constitution Day and Citizenship Day Website
http://constitutionday.cpms.osd.mil/

United States Office of Personnel Management Constitution Initiative
http://www.opm.gov/constitution_initiative/

Constitution for Kids sponsored by the Dirksen Congressional Center
http://www.congressforkids.net/Constitution_index.htm

Constitution Day.com
http://www.constitutionday.com/

Constitution Facts.com
http://www.constitutionfacts.com/

Constitution Day 2010 at Constitution Facts.com – Constitution Activities and Lesson Plans
http://www.constitutionday.cc/

National Constitution Center-Constitution Day
http://www.constitutioncenter.org/ncc_progs_Constitution_Day.aspx

The Law Related Education Department of the State Bar of Texas – http://www.texaslre.org/
–Lesson Plans & Curriculum –http://www.texaslre.org/lps.html
–Games – http://www.texaslre.org/games.html

Patriot Week
http://www.patriotweek.org/

Edward M. Kennedy Institute for the United States Senate
https://www.emkinstitute.org/

George Washington’s Mt. Vernon Estate and Gardens
http://www.mountvernon.org/

James Madison’s Montpelier
http://www.montpelier.org/

The Heritage Foundation – First Principles
http://www.heritage.org/Initiatives/First-Principles

The Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship of Hillsdale College
http://www.hillsdale.edu/kirbycenter/

Hillsdale College Constitution Townhall – Five Hour Seminar – “Reviving the Constitution” – Watch online for free!
http://www.tvworldwide.com/events/hillsdale/100130/

The Gilder Lehrman Institute of American History – The Founding Era
http://www.gilderlehrman.org/institute/era_founding.php

Liberty Day
http://www.libertyday.org/

The Bill of Rights Institute
http://www.billofrightsinstitute.org/

National Paralegal College’s Primer on Constitutional Law & Criminal Procedure
http://nationalparalegal.edu/conLawCrimProc_Public/menu_conLawCrimProc.asp

American Heritage Girls – http://www.americanheritagegirls.org/– AHG Program Alliances: Heritage Frontier Program – “Our Constitution” badge opportunity in partnership with Constituting America’s “We The Future Contest” http://www.americanheritagegirls.org/program/alliances/program-alliances/

 

Guest Essayist: Jeffrey Sikkenga

The late 19th and early 20th Centuries saw the passage of a number of state and federal laws allowing prosecutions for political speech that advocated or implied violence against government. In 1917 and 1918, for example, Congress passed the Espionage Act, the first major federal law against seditious speech since the Sedition Act of 1798.

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Guest Essayist: Tony Williams

“Almighty God, we beg Thy blessings upon us, our parents, our teachers, and our country:” Engel v. Vitale (1962)

In the Everson v. Board of Education of Ewing Township (1947), the Supreme Court decided that it was constitutional for the state of New Jersey to reimburse parents for the cost of bus transportation, even to a parochial school. In rendering the decision, the Court attempted to use evidence from the nation’s founding to prove that there was a “wall of separation between church and state.”

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Guest Essayist: Joseph Knippenberg

In Engel v. Vitale (370 U.S. 421 [1962]), the Supreme Court took up the question of school prayer and rejected as unconstitutional the New York state practice of beginning each school day with the recitation of the Regent’s Prayer.  It was the first of a series of decisions regarding public prayer that included rejecting recitation of the Lord’s Prayer and the reading of bible verses in schools (Abingdon v. Schempp [1963]), rejecting invocations and benedictions at public school graduation ceremonies (Lee v. Weisman [1992]), rejecting student-led prayer at high school football games (Santa Fe Independent School District v. Doe [2000]), implicitly and conditionally upholding a moment of silence at the beginning of the school day (Wallace v. Jaffree [1985]), and upholding prayer at legislative and other public meetings (Marsh v. Chambers [1983] and Town of Greece v. Galloway [2014]).  While the Court’s doctrine has developed over time—above all, in explicitly distinguishing prayer in schools from prayer in other public settings—many of the issues and many of the problems in its jurisprudence were already evident in this first case.

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Guest Essayist: Daniel A. Cotter

Justice Oliver Wendell Holmes, Jr. (1841-1935): The Oldest Justice at Retirement from the Supreme Court

I, Justice Oliver Wendell Holmes, Jr., after serving as a Massachusetts Supreme Court judge for twenty years, was nominated to a vacancy on the Supreme Court of the United States and served for almost thirty years on the highest court in the nation, retiring at age 90.  Justice Holmes took his seat on the United States Supreme Court in 1902, at the age of 61, becoming the 58th Justice of the Supreme Court, and one of the most quoted justices in the Supreme Court’s history as well as one of the best known of the justices.
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Guest Essayist: Joerg Knipprath

“Congress shall make no law…abridging the freedom of speech, or of the press ….” Though there is some debate over its original meaning, the First Amendment is commonly thought to have prohibited administrative prior restraint on public speaking or writing. Still, a speaker or publisher was responsible for the consequences of his words. If the words were, broadly speaking, directed to incite people against the established authority of the government, it was common to punish such spoken words as sedition and printed words as seditious libel.

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Guest Essayist: Tony Williams

“A Puzzle Inside an Enigma: Untangling Affirmative Action”

In Regents of the University of California v. Bakke (1978), the Supreme Court invalidated fixed quota systems for affirmative action as a remedy for historic racism, but decided that using race as a factor in college admissions was constitutional. It was a confusing decision with a 4-4-1 vote with the justices all concurring in part and dissenting in part (and resulting in a 5-4 decision). Bakke did very little to settle the constitutionality of affirmative action or even to clarify the issue—indeed, it only confused the issue further.

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Guest Essayist: Gennie Westbrook

The 1950s and 1960s saw significant gains for civil rights of African Americans. In the 1950s, the U.S. Supreme Court ordered public schools desegregated and the non-violent civil rights movement led by Dr. Martin Luther King, Jr. kept the continuing disadvantages faced by African Americans in the public eye. In the 1960s, federal laws protecting civil rights, voting rights, and housing rights began to chip away at the injustices resulting from racial prejudice and discrimination. In the 1970s the movement continued, focusing on additional perplexing questions related to the constitutional principle of equality in employment and college admissions.

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Guest Essayist: Daniel Cotter

Earl Warren: The Governor from California Becomes The 14th Chief Justice

Nine chief justices and nearly 120 years separate John Marshall from Earl Warren.  While each chief has influenced the Supreme Court and helped to shape its history, Warren and Marshall are often mentioned together as the greatest of the 17 chiefs.  This column explores Earl Warren’s career and his Supreme Court tenure and legacy.
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Guest Essayist: Tony Williams

Brown v. Board of Education of Topeka (1954)

In December 1952, African-American lawyer Thurgood Marshall appeared before the Supreme Court representing a seven-year-old black girl from Topeka, Kansas named Linda Brown who had to ride the bus to her segregated black school instead of walking to the neighborhood school.  Marshall and other NAACP Legal Defense Fund lawyers were there for three days of oral arguments in five consolidated cases dealing with segregated schools.  Three hundred spectators packed the hearing room while four hundred anxiously waited in the corridors.

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Guest Essayist: Robert Lowry Clinton

United States v. Carolene Products Co. 304 U. S. 144 (1938)

This case belongs to a string of cases dating from the late nineteenth century involving substitute or imitation dairy products. Carolene Products arose from a controversy over “Milnut,” a beverage made from mixing skimmed milk with another product that is not milk fat (usually vegetable oil, in this case, coconut oil). In 1923, Congress passed the Filled Milk Act, which prohibited the transportation of filled milk in interstate commerce. Despite the fact that congressional investigators concluded that filled milk was not harmful in itself but was problematic only when falsely labelled and marketed as real milk, the statute nonetheless declared that filled milk was “an adulterated article of food, injurious to the public health,” and a “fraud upon the public.”

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Guest Essayist: William Morrisey

United States v. Carolene Products Co. 304 U. S. 144 (1938)

If you concede the constitutionality of the administrative state, where does that leave citizens’ liberties? That is, if you claim(some might say pretend) that the United States Constitution authorizes unelected, tenured officials the power to frame, enforce, and adjudicate laws you grant a privilege that looks very much like the abrogation of the Constitution’s separation of powers, brushing aside Thomas Jefferson’s maxim that the accumulation of these powers in one set of hands is the definition of tyranny. Under these circumstances, how will citizens’ liberties be protected? Who will do it? This is the question addressed in the Carolene Products case–specifically, in the fourth footnote to the majority opinion, written by Justice Harlan Stone. It has been described as the most famous footnote in the history of the Court.

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Guest Essayist: Gennie Westbrook

In the Civil Rights Cases of 1883, the Supreme Court had ruled 8-1 that the Civil Rights Act of 1875, outlawing racial discrimination in most public places, was unconstitutional. The owners of businesses such as railroads, theatres, and hotels could impose segregation in their facilities, or they could refuse to serve African Americans altogether. The Court adopted a narrow reading of the Civil War amendments, ruling relative to the Thirteenth Amendment that such segregation was not a “badge or incident of slavery,” and that the protections of the Fourteenth Amendment applied against state action, not against private behavior. African Americans endured legal, economic, and social discrimination, as well as brutal and systemic racial violence with little hope of relief for the next seven decades.

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Guest Essayist: Tony Williams

Republican President Dwight Eisenhower reputedly said that appointing Chief Justice Earl Warren and Justice William Brennan were among his biggest mistakes as president as they helped usher in a wave of liberal jurisprudence at odds with Eisenhower’s conservative philosophy.  Republican President George H.W. Bush might have said the same about Justice David Souter for the same reasons.  Finally, Republican President Ronald Reagan would have agreed that Justice Anthony Kennedy surprisingly became a swing vote who could lean left.

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Guest Essayist: Joerg Knipprath

A large mural in the Capitol Building in Washington is titled “Westward the Course of Empire Takes Its Way.” It was painted by Emanuel Leutze in 1861 as a representation of Manifest Destiny, the optimistic world view of 19th century Americans that the country inevitably would be settled from the Atlantic Ocean to the Pacific. Manifest destiny was not a strategy or even a policy, but a slogan that represented an aspiration. It was the emergence of an American Empire. It might be a republic in form, but it would be an empire in expanse, wealth, and glory. The term was frequently used even by good American republicans, such as Thomas Jefferson, James Madison and John Marshall, when discussing their political philosophy.

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Guest Essayist: Daniel A. Cotter

John Marshall Harlan: The Great Dissenter

John Marshall Harlan served more than thirty-three years on the Supreme Court, the sixth longest term in the Court’s history.  During his long tenure, Harlan became known as “The Great Dissenter,” signing more than 300 dissenting opinions from 1877-1911.  Harlan’s grandson, John Marshall Harlan II, would later also serve on the Supreme Court.

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Guest Essayist: Daniel A. Cotter

In 1890, Louisiana passed the Separate Car Act which required railroads to provide separate accommodations, including separate cars, for blacks and whites.  A group of Creoles and blacks in New Orleans formed a committee, the Citizens’ Committee to Test the Constitutionality of the Separate Car Law, to challenge this law.  Homer Plessy, whose light-colored skin made him appear to be white but was classified as “colored” under Louisiana law because he was one-eighth black, agreed to bring a test case on behalf of the Committee. He bought a first class ticket and boarded a train in New Orleans in a “whites only” car.  Plessy was arrested by a detective who had been hired by the Committee to ensure that Plessy would be charged with violating the Separate Car Act.  The Louisiana court found Plessy guilty of violating that Act and Plessy sought Supreme Court review of that ruling.  The Supreme Court heard the case, with the main issues being whether the Separate Car Act violated the Thirteenth and Fourteenth Amendments to the Constitution and whether the Separate Car Act labeled blacks with a badge of inferiority.

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Guest Essayist: Gennie Westbrook

The Thirteenth Amendment to the U.S. Constitution, ratified in 1865, outlawed slavery throughout the United States. The Fourteenth Amendment, ratified in 1868, defined citizenship and prohibited the states from violating equal protection and due process of law for all persons. During Reconstruction following the Civil War, states of the former Confederate States of America were required to ratify these amendments before readmission to the Union, and as long as Union troops occupied the defeated South, the rights of African Americans were somewhat protected. Once Reconstruction formally drew to a close in 1876, however, freedmen and their descendants lost these constitutional legal protections and were unable to put into effect their rights to life, liberty, and property.

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Guest Essayist: Joerg Knipprath

It is an understatement to describe Stephen Johnson Field as a giant among Supreme Court justices. He served more than 34 years on the Court, longer than any but Justice William Douglas. He authored 544 opinions, exceeded only by Justice Samuel Miller. He and his fellow justices during the 1880s, including Miller, Joseph Bradley, and John Marshall Harlan composed what, collectively, was likely the most intellectual bench in Supreme Court history.

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Guest Essayist: Joerg Knipprath

Presiding over a trial in the federal Circuit Court in Corfield v. Coryell (1825) to recover a seized vessel, Supreme Court Justice Bushrod Washington took the occasion to ponder the expansive scope of the Privileges and Immunities Clause of Article IV of the Constitution. Because the clause is to facilitate interstate comity and harmony, it protects citizens traveling from one state to another against having the host state abridge their rights compared to those enjoyed by its own citizens, simply on account of the visitors’ out-of-state status. Not all rights are equally important, so Washington attempted a definition. The rights were those “which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.”

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Guest Essayist: Tony Williams

Roger B. Taney was born and raised on a southern Maryland tobacco plantation.  He attended Dickinson College and received a classical education before reading law under Jeremiah Chase, one of three judges on the state’s General Court.  He passed the bar exam and married the sister of his close friend, Francis Scott Key.  He entered politics and won a seat in the Maryland House as a Federalist.  He supported the War of 1812 and broke with the Federalists over their opposition to the war.  He adopted Jeffersonian views that would lay the foundation for the rise of the Democratic Party.

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Guest Essayist: Daniel A. Cotter

Supreme Court Chief Justice John Marshall, the fourth Chief Justice, served thirty-four-and-a half years in that role. Roger B. Taney, who succeeded Marshall, served for twenty-eight-and-a- half years, including during almost the entirety of the Civil War. (Marshall and Taney are, respectively, the first- and second- longest serving Chief Justices.)

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Guest Essayist: Allen Guelzo

On April 27, 1861, President Abraham Lincoln took one of the most dramatic steps ever taken by an American chief executive, and suspended the privilege of the writ of habeas corpus. He did so, under a provision in Article 1, section 9 of the Constitution: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. But the rationale for the suspension, as well as the significance of the suspension itself, caused the most profound constitutional conflict in American history.

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Guest Essayist: Tony Williams

Arrogance & Injustice in the Dred Scott v. Sandford (1857) Case

In the 1850s, the United States was deeply divided over the issue of slavery and its expansion into the West. The northern and southern sections of the country had been arguing over the expansion of slavery into the western territories for decades. The Missouri Compromise of 1820 had divided the Louisiana Territory at 36’30° with new states north of the line free states and south of the lines slave states. The territory acquired in the Mexican War of 1846 triggered the sectional debate again. In 1850, Senator Henry Clay of Kentucky engineered the Compromise of 1850 to settle the dispute. But, in 1854, the Kansas-Nebraska Act permitted settlers to decide whether the states would be free or slave according to the principle of “popular sovereignty.” Pro and anti-slavery settlers rushed to Kansas and violence and murder erupted in “Bleeding Kansas.” Meanwhile, southern talk of secession was in the air, and observers warned of civil war.
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Guest Essayist: Daniel A. Cotter

Dred Scott was born into slavery in Virginia around 1799, but was moved to Missouri where he was sold to Dr. John Emerson, an army surgeon.  Given Dr. Emerson’s military career, he moved frequently and took Scott with him.  Eventually, Dr. Emerson moved with Scott to the State of Illinois and the Territory of Wisconsin, both free territories.  While in the Wisconsin Territory, Scott married Harriett Robinson, another slave who was also sold to Dr. Emerson.  In 1838, Dr. Emerson married Eliza Irene Sandford from St. Louis.  In 1843, Dr. Emerson died shortly after returning to his family from the Seminole War in Florida.  His slaves continued to work for Mrs. Emerson and were, as was common at the time, occasionally hired out to others.  In 1846, Dred and Harriet Scott each filed suit in St. Louis to obtain their freedom, on the basis that they had lived in a free state and territory, and the rule in Missouri and some other jurisdictions at the time was “once free, always free.”  When the suit reached the Supreme Court of the United States, the main issue presented was whether slaves had standing to sue in federal courts.

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Guest Essayist: State Representative David Eastman

Is the Death Penalty Cruel and Unusual Punishment?

Furman v. Georgia was another 5-4 decision by the United States Supreme Court; meaning, that if any one of the nine justices on the Supreme Court had changed their mind, the result would have been very different. The case dealt with three men who had been convicted in either Georgia or Texas. Two of the men were convicted of rape. The third was convicted of murder. All three men were given the death sentence following separate jury trials. 

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Guest Essayist: Robert Lowry Clinton

Palko v. Connecticut resulted from the appeal of a capital murder conviction. Palko was charged with killing a police officer during the commission of an armed robbery. Although he was charged with first degree murder, he was convicted of second degree murder and sentenced to life in prison. The state of Connecticut appealed the sentence, alleging that the trial judge had failed to admit relevant testimony and given erroneous instructions to the jury. The state supreme court ordered a retrial, at the conclusion of which Palko was convicted of first degree murder and sentenced to death. Palko appealed the second conviction and sentence in the state courts but lost, after which he petitioned the United States Supreme Court, arguing that the second trial amounted to double jeopardy in violation of the Fifth Amendment of the United States Constitution, which provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” Palko argued further that protection against double jeopardy was an essential ingredient of the due process of law guaranteed by the Fourteenth Amendment, which provides that no state may deprive a person of life, liberty or property without due process of law. This amendment, designed primarily to safeguard the rights of newly-freed slaves, had been adopted in the aftermath of the Civil War in 1868.

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Guest Essayist: Joerg Knipprath

In The Republic, Plato designed his ideal society as one in which the wives and children of the Guardians (the ruling elite) would be held in common. This would prevent the corrosive societal effects of nepotism that result when parents raise their children and, due to their natural affinity, seek to secure wealth and status for their offspring at the expense of the common welfare. The children would be reared by officials of the State: “The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter.” There was also the eugenicist angle: “[B]ut the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.” The “children of gold,” though, would undergo rigorous, State-controlled training to prepare them for their leadership role.

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Guest Essayist: Richard E. Wagner

Chicago, Milwaukee and St, Paul Railroad v. Minnesota, 134 U.S. 418 (1890) became a landmark case in establishing a new direction for government regulation of business, though that new direction gave way to the coming of the New Deal. Prior to the Chicago, Milwaukee decision, courts had pretty much deferred to legislatures in deciding whether legislation passed constitutional muster. For the most part, courts would not inject themselves into controversies regarding the legislative regulation of business. This changed with the Chicago, Milwaukee decision.

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Guest Essayist: Gennie Westbrook

Article 1 Section 9, Clause 2 of the U.S. Constitution enshrines the “Great Writ,” a protection against arbitrary imprisonment that dates back at least to the Magna Carta of 1215: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” The writ provides that, when government holds a suspect in custody, he has the right to be taken before a judge who determines whether there is good cause for the arrest, and must be released if there is no legitimate reason for government to hold him.

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Guest Essayist: Robert Lowry Clinton

Pollock v. Farmer’s Loan & Trust Company, 158 U. S. 601 (1895), arose when a stockholder of the company sued to prevent the company from voluntarily paying a tax on its profits. The tax had been assessed pursuant to an act of Congress that levied a tax of two percent per year on incomes over $4,000.00. The act, known as the Wilson-Gorman Tariff Act of 1894, was very broad in scope, and was initially designed to lower tariff rates in response to the Panic of 1893. Evidently many additions and exceptions were added to the bill before its final passage, and President Grover Cleveland, initially supportive of the measure, ultimately allowed the law to be passed without his signature.

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Guest Essayist: Kevin Walsh

The legal tender controversy involved Supreme Court decisions that spanned a decade and a half beginning in 1870 with Hepburn v. Griswold 75 U.S. 603 (1870), in which the Legal Tender Act of 1862, 12 Stat. 345, making United States Treasury notes legal tender, was invalidated on constitutional grounds.  In Hepburn, Chief Justice Salmon P. Chase, who as secretary of the Treasury during the Civil War was a key player in the Legal Tender Act’s passage, held for the majority that congressional authorization of the notes (also referred to as “fiat currency” or “greenbacks”) to be used as legal tender violated the Fifth Amendment Due Process Clause protecting property.

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Guest Essayist: J. Eric Wise

Bankruptcy Power – Sturges v. Crowninshield, 17 U.S. 122 (1819) and Ogden v. Saunders, 25 U.S. 213 (1827)

Shortly after the first person mixed her labor with a thing and called it “mine,” some person furnished property to another, together with an obligation to return it. With that, the problems of debtor and creditor were born.

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Guest Essayist: Richard Epstein

Mahlon Pitney was appointed to the United States Supreme Court by President William H. Taft in 1912, and served there for ten and one-half years until his retirement in December, 1922.  He is generally regarded as a footnote in the annals of American Supreme Court justices.  But for the ten years that he was on the Court, he was in my view a powerful intellect who often bested both Justices Holmes and Brandeis on the many occasions when their views clashed.

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Guest Essayist: Gennie Westbrook

During what Mark Twain called the Gilded Age at the end of the nineteenth century, American commerce grew exponentially and the American economy became the largest in the world. Wealthy industrialists organized their businesses to maximize efficiency and profits, contributing to an increase in buying power for all segments of American society and drawing millions of immigrants from around the world to the United States for opportunity. Workers, toiling long hours in dangerous conditions, sought to organize themselves, too, forming labor unions to bargain collectively for better wages and working conditions. The early attempts at labor solidarity found only very limited success as management blocked their efforts through strike-breaking and intimidation. Conflicting interests between labor and management led to confrontations and violence in several major industries in the intermittent recessions that occurred in the latter decades of the 1800s.

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Guest Essayist: State Representative David Eastman

Can Congress Discriminate Against Non-Union Members?

In 1898, Congress passed the Erdman Act, making it a crime to fire an employee for belonging to a union. Because the Constitution does not expressly give the federal government the power to regulate employment, Congress limited the law to apply only to employees involved in interstate commerce, thereby taking advantage of a clause in Article I, Section 8 of the Constitution, which states:

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Guest Essayist: Tony Williams

Making up Rights?: Lochner v. New York (1905)

In April 1901, Utica, New York bakeshop owner, Joseph Lochner, was arrested for allowing one of his few employees, baker Aman Schmitter, to work more than sixty hours in a week. A grand jury indicted Lochner for violating a New York bakeshop law regulating work hours. In February 1902, he was tried, convicted, and fined fifty dollars for his misdemeanor crime.

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Guest Essayist: Gennie Westbrook

During the late nineteenth and early twentieth centuries, the industrial revolution transformed the American landscape, culture, economy, and relationships between workers and management. The transformation brought significant gains in prosperity for both workers and management, but it also meant laborers worked long hours in dangerous conditions in factories and mines. Workdays of ten to twelve hours were common, with reduction of wages during economic slumps. There was no job security, and lack of safety features led to frequent grisly accidents caused by hazardous working conditions. Workers organized labor unions to bargain collectively for improvements in pay and other working conditions. Management almost always resisted the labor union demands, and each side worked to influence laws in its favor. The United Mine Workers Union was founded in 1890, followed by several other unions organized throughout the 1890s. Also throughout the 1890s, strikes, uprisings, and sometimes violent confrontations between labor and management broke out as workers attempted solidarity in pursuit of better wages, shorter hours, and safer working conditions. Management responded to these initiatives by firing labor union leaders, hiring strike-breakers, intimidating workers, and using political influence to block any lasting legal reforms.

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Guest Essayist: Daniel A. Cotter

David J. Brewer: Foreign Born Justice Who Sat with His Uncle

David J. Brewer was born on June 20, 1837, in Smyrna, Asia Minor (today Turkey), the fourth of six Supreme Court Justices born outside the United States.  Brewer sat on the Court with his uncle, Stephen J. Field, to date the only relatives to serve contemporaneously, with Brewer serving twenty years on the Court before his death in 1910.

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Guest Essayist: Gary Porter

Obstruction of Commerce & the Mail

“Neither snow nor rain nor heat nor gloom of night (nor Pullman Strike) stays these couriers from the swift completion of their appointed rounds.”   This (slightly altered) saying, an inscription found on the General Post Office in New York City, is widely regarded as the motto of the U.S. Postal Service.  It is not, at least not officially, but you get the drift: nothing will be allowed to prevent delivery of the U.S. mail.

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Guest Essayist: Joerg Knipprath

In 1976, Americans celebrated a bicentennial, the anniversary of a revolution against an intrusive, heavy-handed, and unresponsive national government. Repeated petitions and remonstrances by the people’s elected local representatives had been dismissed and ignored by the political elite who controlled that far-away national government, and who considered the people ignorant bumpkins. Among the causes of revolution listed in the published indictment of that elite in 1776 had been the chief executive’s use of his quill to veto beneficial laws; his failure to enforce laws properly enacted; his actions and obstructions that clashed with pressing immigration issues; his expansion of uncontrolled bureaucracies, when he “erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance”; his policies that failed to secure the frontier and protect the inhabitants there against violence by marauders; and his encouragement of “domestic insurrections” that threatened social peace. Yet that chief executive had not acted alone. The legislature of that distant government had passed unconstitutional laws, such as those that overrode the people’s own local laws and altered fundamentally the constitutional relationship between the national government and theirs.

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Guest Essayist: Daniel A. Cotter

In 1938, Congress passed the Agricultural Adjustment Act of 1938 (the “1938 Act”), which it enacted to address and correct provisions of the Agricultural Adjustment Act of 1933 for farm subsidies that the Supreme Court had found unconstitutional.  The 1938 Act established marketing quotas and price controls.  Roscoe Filburn, a farmer in Ohio, admittedly sowed twelve acres of wheat more than he was permitted under the 1938 Act, but none of it was sold on the open market.  Filburn was fined $117.11 for violating the 1938 Act.  Filburn sued, challenging the penalty.  The main issue before the Supreme Court was whether wheat that Filburn used for personal consumption was subject to the quotas imposed by the 1938 Act and whether local commerce could be regulated by the Federal government under the Commerce Clause of the United States Constitution.

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Guest Essayist: Nick Dranias

National League of Cities v. Usery: “I’m Not Dead”

As the Left often does, once they are out of national power, they rediscover the power of state sovereignty. Ironically, they are using it to resist the new administration’s federal immigration policy in formalistically the same way as did the Right during the early days of the Obama administration—albeit in service of an opposite outcome.

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Guest Essayist: Joerg Knipprath

After his landslide reelection victory in 1936, President Franklin Roosevelt delivered a message to Congress on February 5, 1937, that decried the alleged, but fictional, congestion of judicial dockets due in part, he explained, to the incapacity of aged or infirm judges. He proposed a law that would allow him to appoint up to six new Supreme Court justices in addition to the current number, one for each justice over age 70. He repeated the gist of what came to be known as his Court-packing plan in a “Fireside Chat” to the American people on March 9, 1937.

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Guest Essayist: Gennie Westbrook

George Lafayette Carter was a reclusive Virginia industrialist who became a millionaire through business developments based on mining in what became known as the Mountain Empire, encompassing parts of Tennessee, Virginia, Kentucky, and West Virginia. By the time of his death in 1936, he had built his fortune through extensive coal field purchases, founding numerous businesses including Carter Coal and Iron Company. George L. Carter and his wife, Mayetta Wilkinson Carter, had only one child, James Walter Carter. James managed his father’s businesses beginning in 1933.

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Guest Essayist: Daniel A. Cotter

Louis Brandeis: First Jewish Justice of the Supreme Court

Until 1916, the United States Supreme Court had never had a Jewish justice.  That changed on January 28, 1916, when Louis Brandeis, the “People’s Lawyer,” was nominated to the highest court in the land by President Woodrow Wilson. Brandeis served for almost twenty-three years and authored several significant opinions during his time on the Supreme Court.

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Guest Essayist: Tony Williams

The “Sick Chicken” Case: Schechter Poultry Corp v. U.S. (1935)

In 1933, the American economy was mired in the great depths of the Great Depression characterized by unprecedented unemployment and deflation of prices for business and farmers. President Franklin D. Roosevelt and his advisors believed that the problems of the economy were rooted in excessive business competition resulting in low prices, faltering incomes, and underconsumption. In 1933, Congress passed the National Industrial Recovery Act (NIRA) to stimulate business recovery and economic growth as part of the New Deal. The legislation established National Recovery Administration (NRA) as an executive agency to work with business to craft a variety of industrial codes and regulations for entire industries to decrease competition by setting codes within industries. The goal was to set production quotas to increase prices and introduce labor regulations including a minimum wage to benefit workers. The Roosevelt administration sought to prevent “unfair competition,” ironically by allowing business to cooperate in a way that broke antitrust laws.

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Guest Essayist: Keith E. Whittington

Soon after his first inauguration, President Franklin D. Roosevelt tried to close the gold window. At the time, the American currency was tied to the value of gold, and the financial crisis was putting serious pressure on government gold reserves. To deal with the problem, the government devalued the dollar. As an emergency measure, Congress passed a joint resolution declaring that the federal government would no longer recognize any debts that required “payments in gold or a particular kind of coin or currency, or in an amount of money of the United States measured thereby.” During World War I, however, the U.S. Treasury had issued Liberty Bonds that provided that the “principal and interest hereof are payable in United States gold coin of the present standard of value.” Some of those bonds were now due, and creditors filed suit against the federal government demanding payment in the promised gold coin.

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Guest Essayist: James D. Best

To stem home and farm foreclosures during the Great Depression, Minnesota passed a law which allowed a mortgagor to pay court-determined rent set below the contractual mortgage amount. The mortgage holder could not foreclose as long as the mortgagor paid the reduced rent.

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Guest Essayist: Gennie Westbrook

In the late 1920s, farmers across the country generally did not participate in the prosperity of the decade. They were often unable to sell their crops to distributors for sufficient prices to cover their costs of production. Especially in New York, where the milk industry was the cornerstone of agricultural economy, tension between dairy farmers and distributors resulted in angry confrontations. The Great Depression further exacerbated economic chaos and hardship throughout the American economy, making it even more difficult for farmers to adjust to the economic collapse. One farmer wrote to a local newspaper in 1932, “Every can of milk we sell leaves us further in debt than we were before we produced it. This robbery must stop soon or reform will be too late to help us.” By March and April of 1933, farmers and dairymen in various areas joined together in “Milk Wars” and “Farm Strikes” to try to prevent farm products from getting to towns and cities, in hopes that the resulting scarcity would lead to higher prices. They set up blockades to stop any trucks carrying dairy and farm products, seized the cargo and destroyed it.

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Guest Essayist: Joerg Knipprath

The Industrial Revolution created theretofore unimaginable wealth, some of which trickled down as wages to workers in the mills and factories of the 19th century. Though substandard by today’s measure, those wages were sufficiently high and working conditions sufficiently appealing to attract people from farms to the growing cities. Waves of immigrants, mostly impoverished Europeans, flooded the labor pool, as well. That labor surplus depressed wages, which, in turn, kept low-skilled workers poor, at least in relation to the growing middle and upper classes. Churches and other private relief societies undertook the increasingly urgent efforts to ameliorate the poverty of the working class.

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Guest Essayist: Gennie Westbrook

After the Civil War, United States commerce experienced rapid growth, both among the states and in international markets. Congress passed the Interstate Commerce Act in 1887 regulating interstate trade. Many state legislatures wrote constitutional provisions and statutes intended to protect their states’ businesses from what they perceived as unfair competition from other states.

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Guest Essayist: Tony Williams

Federal Regulation and the Rise of Big Business: United States v. E.C. Knight (1895)

The late nineteenth century was a time of business consolidation as the American economy experienced a “great merger movement” with the rise of big business. Through means foul and fair, corporations formed trusts that dominated entire industries to combat competitive pressures that drove prices and at times to monopolize for control. The sugar industry was a part of this consolidation movement.

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Guest Essayist: Daniel A. Cotter

Dartmouth College was chartered in 1769 by King George III. In 1816, over thirty years after the conclusion of the American Revolution, New Hampshire’s legislature attempted to alter Dartmouth College’s charter  by giving  the Governor of New Hampshire authority to appoint trustees to the board and creating a state board with veto power over trustee decisions—in effect, converting the school from a private to a public institution.  The existing trustees filed suit against William Woodward, the newly appointed secretary under the new charter, claiming that the acts of the legislature violated the Constitution.  The main issues presented by the trustees’ suit were whether the Contract Clause of the United States Constitution applied to private corporations and whether the corporate charter of Dartmouth College could be changed by the New Hampshire legislature.

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Guest Essayist: Gary Porter

New Jersey v. Wilson, 11 U.S. 7 Cranch 164 164 (1812)

Are the terms of a contract inviolate?  Can a contract run in perpetuity and affect something other than the parties involved?  Can contracts be impaired (modified or broken) without the consent of both parties?    These were the questions facing the Court in 1812 when they accepted an appeal of New Jersey v. Wilson.

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Guest Essayist: Daniel A. Cotter

In October 1880, the Chicago City Council decided to widen Rockwell Street, requiring the City to acquire certain private property owned by individuals and a right-of-way owned by the Chicago, Burlington & Quincy Railroad Company.  The City of Chicago brought a condemnation suit in state court, and the jury awarded compensation to the individuals but only awarded one dollar to the railroad for its right-of-way.  The railroad appealed, asserting that the condemnation was a taking in violation of the Due Process Clause of the Fourteenth Amendment.  The Illinois Supreme Court affirmed the judgment and the railroad thereafter appealed to the United States Supreme Court on a writ of error.  The issue before the Supreme Court was whether a provision in the Bill of Rights to the United States Constitution applies to a state through the Due Process Clause of the Fourteenth Amendment.

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Guest Essayist: Joerg Knipprath

In 1962, the Supreme Court embarked on what has been described by one scholar as “the most significant reformist activism in which the Warren Court engaged,” other than civil rights cases involving blacks. The constitutional arena was the apportionment of legislative districts, and the case was Baker v. Carr. Chief Justice Earl Warren called Baker “the most important case of [his] tenure on the Court.” Apportionment is the periodic drawing of lines by a state for its congressional districts and for its state legislative districts. Until Baker, federal courts had stayed out of what Justice Felix Frankfurter in a prior case had called a “political thicket,” because it was a “non-justiciable political question.” Such questions could not be resolved by courts for reasons that Justice William Brennan addressed in Baker.

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Guest Essayist: Gennie Westbrook

From our nation’s earliest days, the national government has been involved in education, due to its significance in preparation for constructive citizenship in a republican form of government. In 1787 the Northwest Ordinance set aside public lands specifically for the establishment of schools. Through additional grants of land and money, formation of administrative agencies, the G.I. Bill, and court-ordered desegregation, federal policy has influenced education throughout our history, though traditionally the details of implementation were worked out at state and local levels.

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Guest Essayist: Daniel A. Cotter

Justice George Sutherland: One of the Four Horsemen

Introduction 

In the Supreme Court’s history, six justices were born outside of the United States.  The fifth of those born on foreign soil was George Sutherland (second born in England).  After a career in private practice and public office, Sutherland became an Associate Justice of the Supreme Court in 1923, and would figure prominently in the New Deal jurisprudence as one of the “Four Horsemen” of the Supreme Court.

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Guest Essayist: Richard E. Wagner

In Euclid v. Ambler, the Supreme Court upheld the right of the Village of Euclid in Ohio, mostly farmland east of Cleveland, to impose zoning restrictions on property owners. Today, zoning is a near-universal practice. While zoning did not originate with the village of Euclid, the Euclid case was the first federal case, and it became a beacon of attraction for zoning upon reaching the Supreme Court. Since Euclid, municipalities in America have had nearly unlimited ability to restrict how landowners can use their property, provided only that they assert that they have a good public purpose in doing so.

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Guest Essayist: Gary Porter

Gelpcke v. City of Dubuque, 68 U.S. 1 Wall. 175 (1863) – “Oscillations” in the Law

On its face, Gelpcke v. Dubuque appears to be about the validity of municipal bonds and not much else, but there were deeper legal issues at play. Namely, who has the ultimate authority to interpret a state constitution or statute, the highest state court or the federal courts (including the Supreme Court)? And when a state supreme court gives a new interpretation to a state statute, does that constitute an amendment of the statute, i.e. does it have the status of “law?” If so, and this has the effect of rendering a contract void, can this then bring the opinion of the state supreme court into conflict with the U.S. Constitution, i.e., the Impairment of Contracts clause?

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Guest Essayist: Marshall DeRosa

TEXAS v. WHITE ET AL., 74 U.S. 700 (1869) is one of the most important decisions made by the Supreme Court, because it addresses the nature of the Union. More specifically, is the Union bound together through the consent of the States or the coercive power of the United States government.

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Guest Essayist: Gennie Westbrook

In 1776, the Declaration of Independence asserted that “all men are created equal.” And yet, slavery was legal in all thirteen colonies at the time. Beginning with Pennsylvania in 1780, northern states moved toward the revolutionary ideal by enacting gradual abolition statutes. All children born in Pennsylvania after that time were free persons, though any child born to slaves was required to work for his/her mother’s master until age 28.

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Guest Essayist: Joerg Knipprath

Unlike many of his decisions, Chief Justice John Marshall’s opinion in the foundational case Gibbons v. Ogden (1824), which upheld the right of Gibbons to operate a ferry between Elizabethtown, New Jersey, and New York City in competition with his former partner, Ogden, was well-received by the public. It negated a New York State monopoly grant and struck a blow in favor of restive younger entrepreneurs who hoped to prosper by providing technological innovation and expanding infrastructure as the country’s population and commerce grew.

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Guest Essayist: Joerg Knipprath

In 1785, Boston’s population was around 18,000; across the Charles River, Charlestown counted 1,200. Forty years later, Boston’s population had more than tripled, to 60,000; that of Charlestown to 8,000. The need to accommodate the increased travel and commerce between Boston and points inland resulted in protracted litigation before the Supreme Court in the 1830s in the Charles River Bridge v. Warren Bridge case.

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Guest Essayist: Tony Williams

In 1832, Nicholas Biddle, president of the Second Bank of the United States, applied for an early renewal of the bank’s charter.  He feared that bank opponent, President Andrew Jackson, would move to destroy the bank after he was re-elected.  So, Biddle tried to outmaneuver the president before the election.  His opponent, Henry Clay, and other National Republicans (future Whigs), supported Biddle’s move because they wanted to make it a campaign issue. Both houses of Congress voted to re-charter the bank in July.

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Guest Essayist: Daniel A. Cotter

In 1821, the State of Missouri enacted legislation entitled, “An act for the establishment of loan offices,” which permitted the Missouri Treasurer to issue loan certificates – a form of paper currency issued by the state – up to a total of $200,000.  The Missouri Supreme Court found the loans to be valid, and the appellants submitted a writ of error to the United States Supreme Court.  Missouri Senator Thomas Hart Benton argued the Missouri law was a valid exercise of state sovereignty and also urged the Supreme Court to declare unconstitutional Section 25 of the Judiciary Act of 1789, the putative basis for the Supreme Court’s jurisdiction over the case. The Court decided both issues.

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Guest Essayist: Tony Williams

In the early 1830s, the city of Baltimore was developing as a bustling urban center and port.  The city diverted the streams around John Barron’s successful wharf and lowered the water level, which negatively impacted his business.  He sued the city to recover his financial losses.

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Guest Essayist: Andrew Langer

The Dissolution of the Dormant Commerce Clause:  Willson v. Black Bird Creek Marsh Co.

In The Colorado Kid, author Steven King says, “Sooner or later, everything old is new again.”  This is certainly true when it comes to issues of public policy and constitutional law.  In this essay, we discuss the concept of the “Dormant” Commerce Clause, specifically within the context of navigable waterways.  The issue of who has jurisdiction over “navigable” waters is one that remains a subject of enormous debate—especially as the environmental movement has pushed an ever-more-marginal definition of “navigability” in order to pull more waters under the jurisdiction of the federal government.

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Guest Essayist: Andrew Langer

Green v. Biddle: Clear Title and the Relationship of States to the Federal Government

The easy conveyance of clear title to real property is an essential element of both a stable and prosperous civil society. “Clearing” title by conveying “unappropriated” lands to a central government is one way that fledgling or developing nations spur exploration, settlement, and development of lands.  Such was the issue in the 1823 Supreme Court Case, Green v. Biddle, 21 US 1 (1823), wherein the conveyance of certain unappropriated lands from Virginia to the federal government resulted in confusion when much of that land was used to create the state of Kentucky.

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Guest Essayist: Joerg Knipprath

At the Peace of Paris that ended the Revolutionary War, the United States (defined, as in the Declaration of Independence, as the individual states) were recognized by the British as free and independent. While the British relinquished to those United States territory from the Atlantic to the Mississippi, the several states did not thereby relinquish their own, sometimes conflicting, claims to that land. The Articles of Confederation provided procedures for the settlement of boundary disputes between states under the aegis of Congress and also anticipated that there might be disputes between grantees of land from two different states. Yet, no state was to be deprived of land for the benefit of the United States, so the Confederation Congress could not force the states to cede their western land. Still, a number of states released their claims, so that Congress gained de facto control over those lands and organized the Old Northwest under the Northwest Ordinance of 1787.

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Guest Essayist: Daniel A. Cotter  

At times during our nation’s history, the executive branch of the United States government has tested the limits of its power by taking actions that are not explicitly granted to the president or executive branch.  For example, in Youngstown Sheet & Tube Co. v. Sawyer (the “Steel Seizure Case”) (1952), the Supreme Court addressed the issue of executive power during emergencies in the absence of express statutory or Constitutional authority.  The Supreme Court decision spans more than 140 pages, including Justice Hugo Black’s opinion for the majority, holding that President Harry S. Truman had exceeded the limits of the president’s power, as well as concurring opinions from each of the five members of the Court agreeing with Black’s conclusions, and a long dissent by the Chief Justice. The decision and bases for the Steel Seizure Case are hard to discern from the six opinions written to support the majority.  Justice Robert Jackson’s concurrence is often cited to assess the limits of executive power, as it sets forth a categorization that is the most comprehensible of the six opinions.

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Guest Essayist: Daniel A. Cotter

The three branches of the United States government are often questioned with respect to whether their exercise of powers exceeded the limitations imposed upon them by the United States Constitution. In U.S. v. Curtiss-Wright Export Corp. (1936), the issue was the extent of the president’s and executive branch’s power to conduct the foreign affairs of the United States. The decision has been recognized as a very influential one, establishing the president’s supremacy when it comes to foreign affairs.

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Guest Essayist: Joe Postell

Can Congress give away its legislative powers to other branches of government, including administrative agencies?  In the case of Field v. Clark, the Supreme Court decisively said “no,” laying down a precedent that stands against much of what our government does today.

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Guest Essayist: Tony Williams

In May, 1818, James William McCulloch was a cashier at the Baltimore branch of the Second Bank of the United States.  McCulloch issued a series of bank notes on which the bank did not pay a Maryland state tax.  The state treasurer quickly sued to recover the money and won a judgment in Maryland’s highest court. The Supreme Court soon accepted the case, which would have a profound impact in defining the principle of federalism, the reading of the Necessary and Proper Clause in the Constitution, and the national vision of the Marshall Court.

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Guest Essayist: Joerg Knipprath

Ex parte McCardle was forged in the superheated atmosphere of Southern reconstruction after the Civil War. The struggle to shape that reconstruction pitted the “Radical” Republicans (representing the pre-war abolitionist wing) against moderates within the party. Democrats, reduced to a rump faction, could do little more than get out of the way and, if palatable, delicately offer support to the Republican moderates. The political and constitutional fault line cut between the restrained Lincoln-Johnson presidential reconstruction based on maintaining the existing federalism, but with abolition of slavery, and the program of congressional radicals to treat the South as a conquered province reduced to territorial status, prostrate before Northern arms and to be cleansed of the twin stains of slavery and secession by stripping the erstwhile states of their old constitutional privileges.

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Guest Essayist: Joerg Knipprath

On June 19, 1846, the Rochester, New York, Democrat newspaper reported that over 4,000 people assembled to witness the launch of a new steamship (then often called a “propeller” due to the novel screw propulsion mechanism), the Genesee Chief. She was described as “faultless in her model and appointments.” At 144 feet long, with 20 state rooms, and berths for 75 cabin and 100 steerage passengers, with room for more, she was to be the start of regular steamship service between Rochester and Chicago.

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Guest Essayist: Daniel A. Cotter

Justice Joseph Story: The Youngest Justice Appointed to the Court

Most lawyers in private practice at the age of 32 are preparing for potential consideration for, and transition to, partnership.  At that same age, after a distinguished government and law firm career in Boston, Joseph Story took his seat on the United States Supreme Court in 1811, becoming the 18th Justice of the Supreme Court and the youngest justice appointed to the Supreme Court.  Story served on the Court for almost thirty-four years, writing a large number of opinions and dissents.  His tenure coincided with those of two of the longest serving Chief Justices in the Supreme Court’s history, John Marshall and Roger B. Taney.

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Guest Essayist: Daniel A. Cotter

Section 34 of the Judiciary Act of 1789 provides that “the laws of the several states, except where the Constitution, treaties or statutes of the United States shall otherwise recognize or provide” were to be applied and followed “as rules of decision in trials at common law.” George Swift, a Maine resident, was assigned a bill of exchange from John Tyson in New York.  The bill was dishonored when it became due, and Swift brought a diversity action in the United States District Court for the Southern District of New York seeking payment.  New York common law held that bills of exchange could not be assigned, and the federal court found in Tyson’s favor on that basis.  Swift appealed to the United States Supreme Court, and the main issue before the court was whether the reference to “the laws of the several states” in Section 34 included common law decisions as well as enacted statutes.

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Guest Essayist: Joerg Knipprath

Over the years, the Supreme Court has addressed several constitutional topics in cases involving lotteries. Perhaps none is as significant as Chief Justice John Marshall’s opinion in Cohens v. Virginia. The case was the third major act in a decades-long contest over the nature of the Union and, more specifically, over the constitutional relationship between federal and state laws and between the federal and state judiciaries. On the last point the contest directly involved repeated clashes between the United States Supreme Court and the Virginia Court of Appeals (the state supreme court), and between two dominant jurists, Marshall and the chief judge of Virginia, Spencer Roane. Cohens v. Virginia is the climax in the story of those two rivals.

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Guest Essayist: William Morrisey

“The Great Chief Justice,” John Marshall (1755-1835)

The longest-serving Chief Justice in our history, author of every major Supreme Court ruling in the first third of the nineteenth century—including the one establishing the principle of judicial review—John Marshall earned undisputed honor as “the Great Chief Justice.” He deserves honor also as a great man.

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Guest Essayist: Daniel A. Cotter

Marbury v. Madison (1803) – A Landmark Decision Establishing The Supreme Court’s Role

In an effort to fill the Chief Justice vacancy on the Supreme Court before leaving office, President John Adams offered the position to John Jay, who declined, citing the lack of dignity and respect of the Supreme Court.  Secretary of State John Marshall was with Adams when Adams received Jay’s rejection letter and, with time running out, Adams offered Marshall the Chief Justice position, which Marshall accepted. The Senate confirmed Marshall on January 27, 1801, and he became Chief Justice.  However, a Democratic-Republican Party-led Congress repealed the Judiciary Act of 1801 (aka the “Midnight Judges Act”) and subsequently replaced it with the Judiciary Act of 1802, causing the Supreme Court to be on hiatus from December 1801 until February 1803.

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Guest Essayist: William Morrisey

Introduction: Why Study the Landmark Decisions?

What does it mean to “constitute” America?

How would anyone do that? And why?

And what is “America,” anyway?

“America can mean simply the “New World”—the two American continents, “new to the late-Renaissance Europeans who stumbled upon them en route to China, if not to the Asian settlers who’d lived here for centuries. In that sense, hundreds of millions of Americans now live in dozens of countries, under several distinctive forms of government.

Given the prominent display of the Stars-and-Stripes flag on the Constituting America website, no one reading these words will imagine “America” to mean that, here. We mean the United States of America, a particular country in America, which declared its independence, its self-government, from an empire ruled from Europe. To assert self-government requires one to establish the terms and conditions by which that government will proceed. By leaving home, a young man or woman declares independence from parents: Very well then, but how will you live, under your newfound self-rule? You say you want to live at liberty, pursuing happiness, but what’s your plan? Read more

 

 

Contact: Shonda Werry

Constituting America

Tel: 202-246-0307

Email: constitutingamerica@yahoo.com

 

CONSTITUTING AMERICA PROMOTES STUDENT’S PSA:

3.4 MILLION VIEWS

Constituting America, founded by actress Janine Turner (Northern Exposure, Friday Night Lights, Cliffhanger) and Cathy Gillespie, to air student’s winning PSA on the Constitution nationwide on February 13th.

February 8, 2017

(Colleyville, TX) Constituting America has announced that 236 television stations and the Direct TV and Dish Networks will air the award-winning Public Service Announcement (PSA), Something Beautiful, written and directed by high school senior Laura Leigh Hicks on Monday, February 13th on the program NewsWatch. The animated PSA will be viewed by an anticipated 3.4 million Americans in every major media market across the country – from California to New York; from Texas to North Dakota and everywhere in between!

The PSA, which challenges viewers to read the U.S. Constitution, won Constituting America’s national “We the Future” Contest. Click here to watch the 1 minute PSA now!

In an effort to use the arts and media to promote the non-partisan relevancy of the Constitution and propel the students’ careers, Constituting America submits students’ winning PSA’s to television stations for airing and the PSA has already aired on 54 television stations nationwide. Laura Leigh Hicks hails from Steens, Mississippi and previously served as the president of her school’s chapter of the Eta Sigma Alpha Honor Society.  

Founded by Actress Janine Turner (Northern Exposure, Friday Night Lights, Cliffhanger) and co-chaired by Janine and Cathy Gillespie, Constituting America is a non-profit, non-partisan organization whose mission is to utilize the culture and multi-media outreach such as music, film, television, internet, and social media to reach, educate and inform America’s adults and students about the non-partisan relevancy of the U.S. Constitution and the foundation it sets forth regarding our freedoms and rights. Their multi-tiered approach features the “We The Future Contest,” Winner Mentor Trips and Winner Promotion, “The George Washington Speaking Initiative for Schools and Civic organizations,” “90 Day Online Founding Document Studies with Constitutional Scholars, Constituting America Lecture Events and Patriot Clubs. National Youth Director Juliette Turner reaches youth across America with her bestselling book, Our Constitution Rocks!, and motivational speeches, videos and media interviews.

Janine Turner, Cathy Gillespie, and Laura Leigh Hicks are available for interviews.
For more information visit http://constitutingamerica.org

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INTRODUCTION

The United States Supreme Court: Landmark Decisions And The Justices Who Made Them

 

JUDICIAL POWERS

Marbury v. Madison (1803) – Justice of the Peace William Marbury versus Jefferson’s Secretary of State James Madison who was not allowed to deliver commissions for judicial appointments: Boundary between constitutionally separate executive and judicial branch powers.

Chief Justice John MARSHALL (1755-1835) Served 34 years on the Supreme Court.

Cohens v. Virginia (1821) – Brothers Philip and Mendes Cohen were convicted of selling National Lottery tickets in Virginia.  The two argued that this violated “free flow of commerce” as stated in the Constitution.

Swift v. Tyson (1842) – George Swift received a bill of exchange which was fraudulently obtained by John Tyson.  After the courts in New York decided in favor of Tyson due to New York State law, Swift appealed to the Supreme Court: Federal courts and state common law.

Justice Joseph STORY (1779-1845) – Served 33 years on the Supreme Court.

Propeller Genesee Chief v. Fitzhugh (1851) – Following a collision on Lake Ontario, there were questions of which courts had jurisdiction.

Ex parte McCardle (1869) – William H. McCardle, a newspaper editor who wrote critical articles about the Military Reconstruction Act, was arrested.  He claimed that both the Act and his prosecution were unconstitutional: Congress and Supreme Court appellate review of habeas corpus.

 

CONGRESSIONAL POWERS

McCulloch v. Maryland (1819) – After Congress chartered the Second National Bank of the United States, the state of Maryland passed a law imposing taxes on that bank. James McCulloch, a teller for the bank, refused to pay the tax: Commerce Clause; constitutionality in creation of the Second Bank of the United States; federal law and state law.

Field v. Clark (1892) – Regarding duties collected on goods imported by Marshall Field & Company, John M. Clark, tax collector, argued that the Tariff Act of October 1, 1890 was actually a law even though it was passed by Congress: Presidential powers, and challenges to laws.

 

PRESIDENTIAL POWERS

U.S. v. Curtiss-Wright Exports (1936) – When Curtiss-Wright Export Corporation violated an embargo, to prohibit trade, enacted by President Franklin D. Roosevelt, it argued that the President should not have been given this power: Congress and lawmaking authority to the President.

Youngstown Sheet and Tube Company v. Sawyer (1952) – Youngstown Sheet and Tube Company versus Commerce Secretary Charles Sawyer: Congress, the Constitution, and presidential power to issue an order.

 

FEDERALISM AND STATES’ SOVEREIGNTY

Fletcher v. Peck (1810) – After it was determined that the Georgia legislature took bribes for the passage of the Yazoo Land Act, the new legislature repealed the act and voided all sales coming from it. Robert Fletcher sued John Peck for selling him land with no clear title: Contract Clause of the Constitution.

Green v. Biddle (1823) –When Kentucky became an independent state, it signed a compact with Virginia to protect property rights. Kentucky then passed a law that impaired this compact, causing a dispute over ownership of the property: John Green versus Richard Biddle and the Contracts Clause of the Constitution on public and private agreements.

Willson v. Black Bird Creek Marsh Company (1829) – When Thomas Willson broke through a dam built by the Black Bird Creek Marsh Company, the company sues as it was authorized to build the dam by Delaware law.  Willson argued that the dam was in violation of the Commerce Clause of the Constitution, and that he had a constitutional right to navigate coastal streams.

Barron v. Baltimore (1833) – When the city of Baltimore diverted the flow of streams to aid in street construction, it damaged Barron’s wharf.  John Barron sued the mayor of Baltimore, claiming that the Bill of Rights, specifically the Fifth Amendment, applied to states as well regarding just compensation for private property takings for public use.

Craig v. Missouri (1830) – In 1821, the state of Missouri printed money to loan to farmers.  When Hiram Craig defaulted on his loan, he was sued by the state to force payment.  It was argued that states issuing bills of credit unconstitutional in the first place.

Briscoe v. Bank of Kentucky (1837) – After Kentucky authorized a state owned bank to issue bills of credit, the bank loaned bills to Briscoe. When he failed to pay, the bank sues him. Briscoe claimed that the bank, and therefore Kentucky, had violated Article 1 Section 10 of the Constitution.

Charles River Bridge v. Warren Bridge (1837) – In 1785, the Charles River Bridge Company was granted a charter to construct a bridge between Boston and Cambridge. Years later, the state of Massachusetts allowed the Warren Bridge Company close to the Charles River Bridge.  The Charles River Bridge Company claimed that it had exclusive rights to build a bridge and that the contract with Massachusetts had been violated.

Cooley v. Pennsylvania Board of Wardens (1852) – In 1803, Pennsylvania enacted a law that regulated pilots of ships. Aaron Cooley violated this law by entering the state’s harbor without the guidance of a local pilot. Cooley claimed this was unconstitutional.

Prigg v. Pennsylvania (1842) – After Edward Prigg was convicted in Pennsylvania of capturing and returning a slave from Maryland, he appealed, arguing that the Pennsylvania law making his actions illegal was in conflict with the U.S. Constitution. Ableman v. Booth (1859): Sherman Booth was arrested by U.S. Marshal Stephen Ableman for rescuing an escaped slave in Wisconsin. When Booth was freed because the Wisconsin state government refused to recognize the authority of the federal courts, the case was appealed to the Supreme Court.

Texas v. White (1869) – George W. White, the State of Texas, and the constitutionality of secession from the Union.

 

LOCAL GOVERNMENT

Gelpcke v. Dubuque (1863) – After a city government in Iowa refused to honor railroad tax bonds, Herman Gelpcke and other bondholders sued, in federal court, the City of Dubuque in an attempt to recover interest on the bonds.

Euclid v. Ambler Realty (1926) – In order to prevent the Village of Euclid, Ohio, from growing too large, the village developed zoning laws. Ambler Realty’s property was divided into three classes, therefore hindering it from developing the land for industry. Ambler Realty sues, arguing that the zoning laws deprived it of its property without due process.

Justice George SUTHERLAND (1862-1942) – Served 15 years on the Supreme Court.

San Antonio v. Rodriguez (1973) – Demetrio Rodriguez and other members of the Edgewood Concerned Parent Association in Texas, involving the San Antonio Independent School District, brought forward a suit claiming that the state’s method of school financing violated the assertion of equal protection under the law.

 

ELECTIONS AND REPRESENTATIVE GOVERNMENT

Baker v. Carr (1962) – The Tennessee State Constitution required that legislative districts be redrawn every ten years. Former Mayor Charles Baker argued that this had not been done since 1901, resulting in unfair representation. Tennessee Secretary of State Joe Carr was sued since he was ultimately responsible for conduct of elections and publication of district maps. The state courts sided with the state of Tennessee, and it was brought to the U.S. Supreme Court.

 

PROPERTY RIGHTS

Chicago, Burlington, and Quincy Railroad v. Chicago (1897) – When the Chicago, Burlington, and Quincy Railroad Company was only awarded one dollar for the Chicago city council appropriating the right of way for its property, the railroad company appealed.  The City of Chicago argued that due process of law only required allowing the railroad company’s case to be heard.

 

COMMERCE AND CONTRACTS

New Jersey v. Wilson (1812) – In 1758, the New Jersey legislature made an agreement with the Delaware Indians, giving them a portion of land which could never be sold or taxed. In 1801, the Indians were given permission to sell the land, and in 1804 the legislature repealed the land’s tax exemption. It was argued that the land purchaser has “all the rights of the Indians.”

Dartmouth College v. Woodward (1819) – Dartmouth College was chartered in 1769 by King George III. In 1816, after the revolution, New Hampshire’s legislature attempted to alter the charter and make the privately funded school, public. The existing trustees filed suit against William Woodward, the new appointed secretary under the new charter, claiming that the legislature violated the Constitution.

U.S. v. E.C. Knight (1895) – In 1892, the American Sugar Refining Company acquired E.C. Knight Co. and other sugar companies, resulting in a 98% monopoly of the sugar refining industry. President Grover Cleveland advised the national government, also known as the “Sugar Trust Case,” to sue the E.C. Knight Company under the Sherman Anti-Trust Act to prevent this. The company argued that the government could not regulate the manufacturing of goods through the antitrust or “competition law,” but could only regulate distribution of goods.

Allgeyer v. Louisiana (1897) – In an attempt to protect its citizens from deceitful companies, the state of Louisiana passed a law prohibiting out-of-state insurance companies from conducting business in the state without being authorized by the state. When the E. Allgeyer & Company of Louisiana violated this statute and purchased insurance from New York, Allgeyer claimed that this law violated the Fourteenth Amendment.

Champion v. Ames (1903) – Charles Champion was indicted for shipping Paraguayan lottery tickets from Texas to California under the Federal Lottery act, which prohibited the sales of lottery tickets across state lines.  Champion claimed that the power to regulate commerce does not include the power to prohibit commerce.

Nebbia v. New York (1934) – After Leo Nebbia was fined for violating the price regulations for milk set by the New York state legislature, he challenged the conviction by arguing that the regulations violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.

Home Building and Loan v. Blaisdell (1934) – During the Great Depression, Minnesota extended the time available for people to redeem their mortgages from foreclosure.  Lenders argued that this violated Article 1, Section 10 of the Constitution which prohibits a state from “impairing the Obligation of Contracts.”

Gold Clause Cases (1935) – The Supreme Court decided upon whether Congress’ joint resolution to cancel all gold clauses in public and private contracts was constitutional.

Schecter v. U.S. (1935) – The Supreme Court decided upon whether the National Industrial Recovery Act, a main part of President Roosevelt’s New Deal, was constitutional.

Justice Louis D. BRANDEIS (1856-1941) – Served 22 years on the Supreme Court.

Carter v. Carter Coal (1936) – Carter, a shareholder of the Carter Coal Company, argued that the Bituminous Coal Conservation Act, which regulated the coal mining industry, was unconstitutional, as coal mining is not interstate commerce.

National Labor Relations Board v. Jones and Laughlin Steel (1937) – After the National Labor Relations Board ruled against Jones and Laughlin Steel for discrimination, the company refused to comply with the ruling, stating that the act was unconstitutional.

National League of Cities v. Usery (1976) – The National League of Cities sued claiming that the Fair Labor Standards act, specifically the requirement of states to pay employees a new minimum wage and overtime, was unconstitutional.

Wickard v. Filburn (1942) – Filburn, a farmer in Ohio, was fined for violating a federal rule limiting wheat production.  Filburn sued, arguing that his local business could not be regulated under the constitution.

Garcia v. San Antonio Metropolitan Transit Authority (1985) – When Congress failed to exempt state-owned mass transit systems from its minimum wage and overtime statutes, it was argued that this violated state’s sovereignty granted to it under the Tenth Amendment of the Constitution.

 

LABOR

In re Debs (1895) – In 1984, the president of the American Railway Union was involved in the Pullman Strike.  When the government ordered the strikers to return back to work because the strike turned violent, Debs challenged the federal government’s ability to intervene.

Justice David J. BREWER (1837-1910) – Served 20 years on the Supreme Court.

Holden v. Hardy (1898) – The state of Utah passed a law limiting the number of hours one could work in a smelter or mine.  It was argued whether or not this law was constructional.

Lochner v. New York (1905) – New York law prohibited a bakery employee from working more than ten hours a day and sixty hours a week. It was argued that this law was in violation of “freedom of contract” under the due process clause.

Adair v. U.S. (1908) – William Adair was indicted after he fired a railroad employee for belonging to a labor union, which was a direct violation of the Erdman Act of 1898.  Adair argued that the ban on forbidding workers from joining labor unions was unconstitutional.

Coppage v. Kansas (1915) – Coppage, an employer, forbade his employees from joining labor unions.  Such anti-union contracts were prohibited by Kansas state law.  Coppage argued that this law violated his due process rights.

Justice Mahlon Pitney (1858-1924) Served 10 years on the Supreme Court.

 

MONEY AND FINANCE

Sturges v. Crowninshield (1819) and Ogden v. Saunders (1827) – It was argued whether or not state bankruptcy laws violated the Constitution, as the Constitution grants that power to Congress.

Legal Tender Cases – These cases decided upon whether legal tender in the form of paper money violated the Constitution.

Pollock v. Farmers Loan and Trust (1895) – Pollock owned stock in the Farmers Loan and Trust Company.  When the company announced that it would comply and pay the taxes under the Wilson-Gorman Tariff Act, he sued, claiming that the law was unconstitutional..

 

DUE PROCESS OF LAW AND DEFENDANTS’ RIGHTS

Ex parte Vallandigham (1864), and Ex parte Milligan (1866) – These cases decided upon when a person should be tried in a military tribunal and when a person should be tried in civilian courts under the Constitution.

Chicago, Milwaukee, and St. Paul Railroad v. Minnesota (1890) – When the Minnesota Supreme Court refused to overturn a regulatory agency’s set railroad rates, it was appealed to the Supreme Court.  The companies argued that the rates were set without due process of law.

Meyer v. Nebraska (1923), and Pierce v. Society of Sisters (1925) – These cases argued civil liberties in education, claiming that these regulations violated the Due Process Clause of the Fourteenth Amendment.

Palko v. Connecticut (1937) – Following being sentenced to both first-degree and second-degree murder, Palko appealed, claiming that the Fifth Amendment protecting against double jeopardy applied to state governments, as well.

 

CRIMINAL LAW

Furman v. Georgia (1972) – This case argued whether or not the death penalty is considered cruel and unusual punishment.

 

CIVIL RIGHTS

Dred Scott v. Sanford (1857) – When Scott, a slave, sued for his freedom, it was argued that he had no right to sue in federal courts, as slaves were not considered citizens.

Ex parte Merryman (1861) – Lieutenant John Merryman was arrested, charged with, among other things, various acts of treason. He requested a writ of habeas corpus, and a hearing. In U.S. legal history, this is an American Civil War case contesting the president’s power to suspend the writ of habeas corpus during a national emergency and for public safety.

Chief Justice Roger TANEY (1777-1864) Served 28 years on the Supreme Court.

The Slaughterhouse Cases (1873) – When a city in Louisiana attempted to regulate and take over the slaughterhouse industry, butchers sued on the grounds of due process, privileges or immunities, and equal protection clauses of the Fourteenth Amendment.

Justice Stephen J. FIELD (1816-1899) Served 34 years on the Supreme Court.

Civil Rights Cases (1883) – It was argued that the Civil Rights Act of 1875 violated the Constitution because Congress did not have the authority to regulate private matters.

Plessy v. Ferguson (1896) – Argued that segregation laws were unconstitutional, even if segregated facilities were “separate but equal.”

Justice John Marshall HARLAN (1833-1911) – Served 34 years on the Supreme Court.

The Insular Cases (1901) – Argued how to govern U.S. territories, as nothing was specifically said about it in the Constitution.

Jones v. Alfred H. Mayer Co. (1968) – Determined whether or not Congress could regulate the sale of private property in an effort to prevent discrimination.

United States v. Carolene Products Co. (1938) – When Carolene Products Company violated a federal law prohibiting filled milk to be shipped in interstate commerce, the company argued that this law violated the Commerce Clause and on due process grounds.

Bolling v. Sharpe (1954) and Brown v. Topeka Board of Education (1954) and Cooper v.

Aaron (1958) – Argued that school segregation was unconstitutional and that states are bound by the Supreme Court’s decisions.

Chief Justice Earl WARREN (1891-1974) – Served 15 years on the Supreme Court.

Griggs v. Duke Power (1971) and California v. Bakke (1978) and USWA v. Weber (1979) and Fullilove v. Klutznick (1980) – These cases argued the constitutionality of efforts to battle discrimination. 

Richmond v. J. Croson Company (1989) – Argued whether or not a city giving preference to minority businesses for municipal contracts was constitutional.

 

FIRST AMENDMENT RIGHTS

Establishment Clause:

Abrams v. United States (1919) – Argued whether inciting resistance to a war violated the First Amendment of the Constitution.

Justice Oliver Wendell HOLMES, Jr. (1841-1935) – Served 29 years on the Supreme Court.

Engel v. Vitale (1962) and Everson v. Ewing (1962) – Decided on whether or not promoting a particular religion in schools in unconstitutional.

Freedom of Speech:

Gitlow v. New York (1925) and Bradenburg v. Ohio (1969) – Argued whether or not being convicted for speech that promotes anarchy, violence, or terrorism violates an individual’s right to free speech.

Chief Justice William Howard TAFT (1857-1930) – Served 8 years on the Supreme Court.

Dennis v. United States (1951) – Dennis, General Secretary of the Communist Party USA, was convicted for speech plotting to overthrow the government.  It was argued that this conviction is a violation of the First Amendment.

Justice Hugo BLACK (1886-1971) – Served 34 years on the Supreme Court.

Freedom of the Press:

New York Times v. Sullivan (1964) – Argued whether or not Alabama’s law on libel, by not requiring a person to prove harm violates an individual’s right to free speech.

Justice William J. BRENNAN, Jr. (1906-1997) – Served 33 years on the Supreme Court.

 

PERSONAL CONDUCT AND PRIVACY

Griswold v. Connecticut (1965) – It was argued that a Connecticut law banning forms of contraceptives violated an individual’s right to privacy.

Roe v. Wade (1973) and Planned Parenthood of Southeastern PA v. Casey (1992) – Determined whether aspects of abortion laws violated an individual’s right to privacy.

Lawrence v. Texas (2003), United States v. Windsor (2013) and Obergefell v. Hodges (2015) – These cases argued civil rights for homosexuals and whether or not laws infringing on these rights violated the Constitution.

Justice Antonin SCALIA (1936-2016) – Served 30 years on the Supreme Court.

 

FOREIGN POLICY AND TREATY LAW

Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832) – These cases dealt with government authority for relations with the Native American nations.

 

MODERN SUPREME COURT CASES

Gonzales v. Carhart (2007) – The court upheld the federal Partial-Birth Abortion Ban Act, approving for the first time a prohibition of a specific abortion procedure.

Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, and Alito. Dissenters: Stevens, Souter, Ginsburg, Breyer.

District of Columbia v. Heller (2008) – The court ruled for the first time that the Second Amendment provides an individual right of gun ownership, unrelated to militia service.

Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, and Alito. Dissenters: Stevens, Souter, Ginsburg, Breyer.

McDonald v. Chicago (2010) – Application to the states of the right to keep and bear arms.

Vote: (5 to 4) Majority: Alito, Roberts, Scalia, Kennedy, Thomas. Dissenters: Stevens, Ginsburg, Breyer, Sotomayor.

Bush v. Gore (2000) and Bush v. Palm Beach County Canvassing Board (2000) – The Supreme Court ruled that the state of Florida’s court-ordered manual recount of vote ballots in the 2000 presidential election, between Vice President Al Gore and Texas Governor George W. Bush, was unconstitutional.

Vote: (5 to 4) Majority: Kennedy, O’Connor, Rehnquist, Scalia, Thomas. Dissenters: Stevens, Souter, Ginsburg, Breyer.

Crawford v. Marion County Election Board (2008) – The court ruled Indiana’s requirement that voters show a photo id does not violate the Constitution.

Vote: (6 to 3) Majority: Roberts, Stevens, Scalia, Kennedy, Thomas, and Alito. Dissenters: Souter, Ginsburg, Breyer.

Citizens United v. Federal Election Commission – The court agreed corporations and unions could make unlimited independent expenditures in campaigns, saying restrictions violated free speech.

Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, and Alito. Dissenters: Stevens, Ginsburg, Breyer, Sotomayor.

Justice Anthony KENNEDY (born 1936) – Began serving on the Supreme Court February 1988.

Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission – United States Supreme Court unanimously ruled that federal discrimination laws do not apply to religious organizations’ selection of religious leaders.

Vote: (8-0) Majority: Roberts, Scalia, Kennedy, Thomas, Alito, Ginsburg, Breyer, and Sotomayor.

 

CONCLUDING ESSAY

The United States Supreme Court: Landmark Decisions And The Justices Who Made Them

 

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Guest Essayist: Professor William Morrisey

Faithful readers of Constituting America’s 90-Day Study have followed the story of our constitution through each of our presidential elections. We have seen that the moral foundations of both of our constitutions—the Articles of Confederation and the United States Constitution that replaced it—find their most cogent expression in the Declaration of Independence. There, the Founders held the self-evident truth that all men are created equal, endowed by their Creator with unalienable rights including life, liberty, and the pursuit of happiness. Governments must therefore be framed to secure those unalienable rights. Our God-endowed, or natural, rights—regulated by the laws of Nature and of Nature’s God—find security in our legal or civil rights, defended by a system of government so structured as to channel the ambitions of political men and women toward the guardianship of those rights. This requires a regime designed to empower the government so our rights can be defended effectively against those who threaten them, at home or abroad. At the same time, the powers of that government will check and balance one another, so that no single individual or group of individuals will likely usurp all those powers, setting us on the road to tyranny. America’s early Constitutional conflicts centered on the question of how much power should be placed in the hands of the national government vis-à-vis the states’ governments. But whether Federalists or Anti-Federalists, Hamiltonians or Jeffersonians, all of the principal founders aimed at securing the natural rights of Americans by the means of well-designed constitutional forms.

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Guest Essayist: Michael Barone

 

Only once before the twenty-first century has America had three consecutive eight-year presidencies: the years 1801-25 in which three members of “the House of Virginia,” Thomas Jefferson, James Madison and James Monroe each won two general elections and served for eight years. Historians have called the end of this period “the Era of Good Feelings,” in part because Monroe won his second term without opposition with a single electoral vote cast for his secretary of state, John Quincy Adams.

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Guest Essayist: Juliette Turner

 

Barack Obama: Forty-Fourth President of the United States

Nickname: The First African-American President

Terms in Office: 2009-2013; 2013-present

Fast Stats

  • Born August 4, 1961, in Honolulu, Hawaii
  • Parents: Barack Obama Sr. and Stanley Ann Dunham Obama Soetoro
  • Barack Obama is still living and in office
  • Age upon Start of First Term: 47; Age upon Conclusion of First Term: 51
  • Age upon Start of Second Term: 51
  • Religious Affiliation: Congregationalist (Protestant)
  • Political Party: Democrat
  • Height: 6 feet 1 inch
  • Vice President: Joseph Biden

Bottom Line

President Obama is the current president of the United States and is serving his second term in office. Obama passed his landmark legislation, the Affordable Care Act; oversaw the capture and death of terrorist mastermind Osama bin Laden; and enforced a multibillion dollar stimulus in an attempt to help the economy. He has struggled with a scandal regarding the surveillance of the American people by the federal government and an ever-growing debt and deficit.

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Guest Essayist: Andrew Langer

 

“One of (PATRIOT Act II’s) provisions would apparently enable federal employees to strip US citizens of their rights without due process. More broadly, it would create a separate, very shadowy justice system for terrorist suspects in which most of the rights and procedures normally guaranteed criminal suspects can be abrogated at the discretion of the government.” – John Kerry, A Call To Service, pp. 177-178 (2003)

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Guest Essayist: The Honorable John N. Hostettler

 

Congress Sets Times for Electors

Article II, Section 1. Clause 4:

The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

Title 3, Chapter 1 of the U.S. Code describes the timeframe for the choosing of and voting by members of the Electoral College.

Sec. 1: The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.18

Sec. 7: The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.19 [emphasis added]

Choosing Electors: A Case Study

The presidential election of 2000 provided an excellent insight into the practical application of the Constitution’s provision for choosing electors for that office. After the polls closed on November 7, 2000, attention soon turned to the state of Florida and a growing controversy over punch-card ballots used in a few of its counties. The combined count of the electors from all of the states presumed to be assigned to the Democrat candidate Albert Gore, Jr. Republican candidate George W. Bush indicated that the race was going to be close that the results of the popular vote for president in Florida would determine the outcome of the race. This was due to the fact that the assignment of electors would be determined by that popular vote.

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Guest Essayist: Brian Chilton

 

At the Constitutional Convention of 1787 a Mrs. Powel of Philadelphia asked Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” to which Franklin responded, “A republic, if you can keep it.” The 1996 presidential election cycle and the twenty years hence have demonstrated the fragility of Franklin’s “If.”

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Guest Essayist: Juliette Turner

 

Bill Clinton: Forty-Second President of the United States

Nickname: The Comeback Kid

Terms in Office: 1993-1997; 1997-2001

Fast Stats:

  • Born August 19, 1946, in Hope Arkansas
  • Parents: William Jefferson Blythe III and Virginia Dell Cassidy; Stepfather: Roger Clinton
  • Bill Clinton is still living
  • Age upon Start of First Term: 46; Age upon Conclusion of First Term: 50
  • Age upon Start of Second Term: 50; Age upon Conclusion of Second Term: 54
  • Religious Affiliation: Baptist
  • Political Party: Democrat
  • Height: 6 feet 2.5 inches
  • Vice President: Al Gore

Bottom Line:

Bill Clinton dealt with two government shutdowns during his presidency: one from November 14 to November 19, 1995, and another from December 16, 1995, to January 6, 1996. He still managed to stabilize the American economy and balance the national budget. Clinton also experienced several international successes and continued national prosperity, but he was forced to fight to overcome three scandals.

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Guest Essayist: Tony Williams

 

A Thousand Points of Light: George H.W. Bush and the 1988 Election

George H.W. Bush had three significant obstacles to overcome if he wanted to be elected president in 1988.  The first was that Bush’s election seemed to be a referendum on eight years of the Reagan presidency.  Americans were split over that legacy with conservatives wanting to build on his economic and foreign policy achievements in the Cold War, while liberals wanted to stop a third consecutive term by a conservative Republican.  The recent Iran-Contra hearings had damaged the Reagan presidency and fed the partisanship.

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Guest Essayist: Tony Williams

Morning in America: Ronald Reagan & the 1984 Election

In his 1984 State of the Union Address, President Ronald Reagan laid out his principles and vision that had guided his first term and provided the foundation for his re-election campaign. He reminded voters that the economy was growing rapidly and was back on track after the horrific stagflation of the Carter administration. The “crisis of confidence” of the 1970s was conquered by a renewed American spirit.  Reagan was proud to report that, “There is renewed energy and optimism throughout the land.”  Indeed, he touted, “America is back, standing tall.”

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Guest Essayist: Andrew Langer

 

In many ways, the circumstances surrounding the 1980 presidential election mirror those surrounding the 2016 elections: America’s economy in the doldrums and an electorate hungry for change. But the 2016 elections allow us the hindsight of nearly four full decades of history, and teach us that if we aren’t willing to learn those lessons, we are doomed to repeat them.

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Guest Essayist: Juliette Turner

 

Jimmy Carter: Thirty-Ninth President of the United States

Nickname: The Peanut Farmer

Terms in Office: 1977-1981

Fast Stats

  • Born October 1, 1924, in Plains, Georgia
  • Parents: James Earl and Lillian Gordy Carter
  • Jimmy Carter is still living
  • Age upon Start of Term: 52; Age upon Conclusion of Term: 56
  • Religious Affiliation: Southern Baptist
  • Political Party: Democrat
  • Height: 5 feet 9.5 inches
  • Vice President: Walter Mondale

Bottom Line:

Jimmy Carter tried to fix a struggling U.S. economy while simultaneously working to promote international peace and stability, winning a Nobel Prize in 2002.

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Guest Essayist – Gerald R. Ford Presidential Foundation

The Gerald R. Ford Presidential Foundation, the Grand Rapids Economic Club and the National Constitutional Center hosted “Our Constitution Works: President Ford’s Date with Destiny” on October 20, 2014 in Grand Rapids, Michigan. The following is a partial transcript of the videotaped panel discussion. Used with permission.

Doug DeVos, Gerald R. Ford Presidential Foundation Trustee, National Constitution Center Trustee and former Chair of the Grand Rapids Economic Club hosted the event. Steve Ford, son of Gerald & Betty Ford, illustrated his father’s belief in the pardon decision by retelling the story in which he personally asked his father about the pardon.

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Guest Essayist: Professor David Kopel

 

During the 1972 election, incumbent Republican President Richard Nixon won an astoundingly large margin, garnering 520 electoral votes. Despite his huge advantages during the election, President Nixon and his campaign operatives engaged in unethical and illegal activities during the campaign. The ultimate victim of Nixon’s crimes turned out to be Nixon himself, as he was forced to resign in 1974 after his misdeeds were uncovered. The unraveling of Nixon’s criminal conspiracies led to reforms for good government.

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Guest Essayist: John Marini

The American Mind with Charles R. Kesler: Presented by The Claremont Institute. Originally published on Jan 30, 2014 in the third segment with University of Nevada Reno Professor John Marini, Marini and Kesler discuss President Nixon and his losing battle with Washington bureaucracies. Used with permission.

PRESIDENT NIXON VS. THE ADMINISTRATIVE STATE.  An Interview with John Marini

John:  You have to begin to see what Nixon’s plan was after the election, and there you get a better sense of his view that this is the last time that we’re going to be able to take on the centralized bureaucratic apparatus and be able to hold it back.

Charles:  John, if Richard Nixon were a character in a western, who would he be?  Simon Legree?

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Guest Essayist: Juliette Turner

 

Richard M. Nixon: Thirty-Seventh President of the United States

Nickname: Red Hunter

Terms in Office: 1969-1973; 1973-1974

Fast Stats

  • Born January 9, 1913, in Yorba Linda, California
  • Parents: Francis Antony and Hannah Milhous Nixon
  • Died April 22, 1994, in New York, New York; age 81
  • Age upon Start of First Term: 56; Age upon Conclusion of First Term: 60
  • Age upon Start of Second Term: 60; Age upon Conclusion of Second Term: 61
  • Religious Affiliation: Quaker
  • Political Party: Republican
  • Height: 5 feet 11.5 inches
  • Vice President: Spiro T. Agnew (1969-1973) and Gerald R. Ford (1973-1974)

Bottom Line:

Most of Nixon’s successes came from international policy: his treaty with the Soviet Union, his negotiation to open trade with the People’s Republic of China, and his attempts to conclude the Vietnam War. In 174, a year into his second term, Nixon resigned to avoid the humiliation of impeachment after the infamous Watergate Scandal.

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Guest Essayist: Daniel A. Cotter

 

Anyone who believes that today’s political discourse has reached a new low should consider the political career and rhetoric of George C. Wallace, a 1968 Presidential candidate for the American Independent Party, a party formed by Wallace after the Democratic Party rejected his segregationist agenda.  Wallace was at the forefront of resistance to the Supreme Court’s civil rights decisions, including the landmark Brown v. Board of Education ruling.

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Guest Essayist: Professor Steve Knott

 

A House Divided: The Presidential Election of 1968

The presidential election of 1968 was held amidst a deluge of violence and civil unrest. That the United States managed to survive this annus horribilis was a testament to the resilience of its people and of its constitutional framework. The simple fact that the election proceeded apace, as did a peaceful transition of power from one party to another, were welcomed signs of health in a body politic that some considered to be terminally ill.

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Guest Essayist: Brion McClanahan

 

Part of this essay is taken from Brion McClanahan’s 9 Presidents Who Screwed Up America and Four Who Tried to Save Her (Regnery History, 2016).

The 1964 election between Barry Goldwater and Lyndon Johnson was a watershed election.  Goldwater “flipped” the South and by the early 1970s, the South was voting solidly Republican for the first time since Reconstruction. These weren’t the same Republicans, however, as conservative Southerners begrudgingly gave up allegiance to the Democrat Party for a candidate they believed better reflected their political worldview.

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Guest Essayist: Tony Williams

 

JFK, Catholicism, and the 1960 Election

The American Founding ushered in a “new order for the ages” that included the unprecedented and remarkable natural right of liberty of conscience.  The First Amendment protected this universal right of all humans and banned Congress from establishing an official religion.  The Constitution also banned all religious tests for national office.

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Guest Essayist: James Legee

 

The election of 1956 saw Adlai Stevenson again tasked with the unenviable duty of an electoral contest against Dwight D. Eisenhower, which, it will come as no surprise, did not end in Stevenson’s favor.  Eisenhower is well known to students of history and government, Stevenson, a one-term governor of Illinois, barely garners a mention in most books on the Cold War.  Despite his loss, Stevenson was an important bridge between the New Deal policies of the Roosevelt administration and the Great Society of Lyndon B. Johnson.  He articulated a progressive platform that would guide the Democratic Party for the coming decades in regards to domestic policy.  Electoral defeat is quite common for ideologues and intellectuals on both ends of the ideological spectrum, but part and parcel with his intellectual bend came a truly unique rhetoric for the role of government in society.

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Constituting America first published this message from Founder & Co-Chair Janine Turner over Memorial Day Weekend, 2010, the inaugural year of our organization.  We are pleased to share it with you again, as we celebrate our 6th birthday!  

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

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Guest Essayist: Horace Cooper

 

Communism and Civil Liberties: The Election of 1952

The election of 1952 brought about the first GOP presidential victory in more than 20 years.  It came about at a time while many in America were weary from World War II, and they were very apprehensive about the potential for subversion by the Soviet Union and its radical Marxist ideology.

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Guest Essayist: Juliette Turner

 

Harry S. Truman: Thirty-Third President of the United States

Nickname: The High-Tax Harry

Terms in Office: 1945-1949; 1949-1953

Fast Stats

  • Born May 8, 1884, in Lamar, Missouri
  • Parents: John Anderson and Martha Ellen Young Truman
  • Died December 26, 1972, in Kansas City, Missouri; age 88
  • Age upon Start of First Term: 60; Age upon Conclusion of First Term: 64
  • Age upon Start of Second Term: 64; Age upon Conclusion of Second Term: 68
  • Religious Affiliation: Baptist
  • Political Party: Democrat
  • Height: 5 feet 9 inches
  • Vice President: none (1945-1949) and Alben W. Barkley (1949-1953)

Bottom Line:

Harry Truman assumed the presidency in 1945 after the death of Franklin Roosevelt. As president, he oversaw the conclusion of both the European and the Pacific front in World War II. Truman won a surprise second term, during which time he worked to stabilize the American economy to prevent a second depression and organized the American invasion of Korea during the Korean War.

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Guest Essayist: Professor William Morrisey

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1948: The Dixiecrats

The primary elections of 2016 have invited comparisons to political factions in American politics that haven’t appeared in such clear focus for nearly seventy years. Although the Republican Party of 1948 had papered over its divisions between moderate-to-liberal business interests on the East Coast—represented by New York Governor Thomas Dewey—and Middle-Western conservatives—represented by Robert Taft and, behind him, Herbert Hoover—Democrats split bitterly into three groups. The mainstream of the party nominated President Harry Truman; the left wing (which included democratic socialists and some communists) ran Henry Wallace on the ticket of the Progressive Party; and the segregationist, southern Democrats ran South Carolina Governor Strom Thurmond on the ticket of the States’ Rights Democratic Party or “Dixiecrats.” In one of the most famous upsets in American political history, Truman overcame his party’s fracturing and defeated Dewey, although the Dixiecrats won the combined 38 electoral votes of Louisiana, Mississippi, Alabama, and South Carolina. The Progressives failed to win a single electoral vote.

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Guest Essayist: Tony Williams

 

Global War and Peace: The 1944 Election

In his 1944 State of the Union address, President Franklin D. Roosevelt offered a “Second Bill of Rights” that redefined the rights of the founding bill of rights. This radical pronouncement promised economic security and “positive rights” guaranteed by the federal government.

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Guest Essayist: Andrew Bibby

FDR’s Third Term and the Twenty-Second Amendment

On November 5, 1940, Franklin Delano Roosevelt became the first and only U.S. president to be elected for more than two terms. A newspaper headline depicted the historic moment with a joke that captured the public’s ambivalence toward Roosevelt’s unprecedented break from tradition: “Safe on third!”

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Guest Essayist: Horace Cooper

 

The United States Supreme Court and the New Deal

Many a law student is familiar with the line, “A switch in time, saved nine.”  It refers to the actions of Chief Justice Charles Evans Hughes and Justice Owen J. Roberts – Supreme Court justices who switched their votes from holding the legislative program of President Franklin Delano Roosevelt unconstitutional to joining the “political deference” team of Harlan F. Stone, Louis D. Brandeis and Benjamin N. Cardozo to approve FDR’s proposals.

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Guest Essayist: Professor Joerg Knipprath

 

Franklin Delano Roosevelt, running for re-election in 1936, received 60.8% of the popular vote, second-highest popular vote percentage since that method of selecting presidential electors became dominant in the 1830s. Only Lyndon Johnson’s 61.1% over Barry Goldwater in 1964, Richard Nixon’s 60.7% over George McGovern in 1972, and Warren Harding’s 60.3% over James Cox in 1920 are on a similar scale. The electoral vote was even more lopsided, as Roosevelt defeated Kansas Governor Alf Landon 523 votes to 8 (46 states to 2). Only Ronald Reagan in 1984 (525 votes to 13; 49 states to 1 plus D.C.) and Richard Nixon in 1972 (520 votes to 17; 49 states to 1 plus D.C.) enjoyed similarly impressive margins since the modern two-party system emerged.

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Guest Essayist: Tony Williams

 

In 1932, the U.S. economy reached its nadir during the Great Depression.  Unemployment had risen to more than 20 percent, or 11 million Americans, matched by a similar number of the underemployed as factories and businesses closed their doors.  Banks were closing at an alarming rates as people instantly lost their life savings.  Hundreds of thousands of farmers and urban dwellers alike were suffering forecloses and lost their homes.  Breadlines were long and strained the resources of private charities and local governments.

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Guest Essayist: Daniel A. Cotter

 

The 1932 Presidential election took place during the height of the Great Depression.  While a number of candidates ran on third party tickets, the main fight for the White House featured the incumbent Republican Herbert Hoover against Democrat Franklin Delano Roosevelt and none of the other candidates garnered more than 2% of the popular vote.  Hoover had won the presidential election in 1928 on a pro-business platform promising continued prosperity.  Nine months into Hoover’s term, on October 24, 1929, the stock market crashed, beginning the period that would become known as the Great Depression.  The challenges created by the downward economic spiral consumed Hoover’s term and were a main focus of the 1932 presidential election.

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Guest Essayist: Scot Faulkner

 

How Urbanism Forever Changed America

The 1928 Presidential Election remains the zenith of Republican political power.  Republican Herbert Hoover crushed Democrat Al Smith, winning 58 percent of the popular vote and 83 percent of the electoral vote. [1] The landslide was fueled by years of prosperity, affection for outgoing President Calvin Coolidge, and deep seated concerns over Smith’s Catholicism. Republicans also amassed majorities in the House and Senate not seen again until 2014.

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Guest Essayist: Juliette Turner

 

Thirty-First President of the United States

Nickname: The Great Humanitarian

Terms in Office: 1929-1933

Fast Stats

  • Born August 10, 1874, in West Branch, Iowa
  • Parents: Jesse Clark and Hulda Randall Minthorn Hoover
  • Died October 20, 1964, in New York City, New York; age 90
  • Age upon Start of Term: 54, Age upon Conclusion of Term: 58
  • Religious Affiliation: Society of Friends (Quaker)
  • Political Party: Republican
  • Height: 6 Feet
  • Vice President: Charles Curtis

The Bottom Line

Herbert Hoover served one term, during which he struggled to combat the Great Depression that began the first year he was in office.

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Guest Essayist: Rachel Sheffield

 

In the 2012 presidential election, 53 percent of the voters were women. Imagine if women, who make up about 51 percent of the American population, couldn’t vote. It wasn’t that long ago when that was a reality.

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Guest Essayist: Professor Joe Postell

 

From today’s standpoint, the presidential election of 1924 might appear to be an oddity or an outlier.  In 1924 the nominees of both parties ran on a conservative domestic agenda of limited government and tax cuts.  For this reason author Garland Tucker calls 1924 “The High Tide of American Conservatism.”

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Guest Essayist: Daniel A. Cotter

 

The Election of 1920: The Sedition Act, Eugene Debs, and the “Red Scare”

Eugene V. Debs was a founding member of the Industrial Workers of the World and a frequent Presidential candidate for the Socialist Party of America.  Debs became a well-known socialist both through his political activity and as a result of the government’s criminal prosecution of his activities.  Other essays in this series cover the numerous Presidential elections in which Debs ran, as well as the other candidates in the 1920 Presidential election. This essay focuses on the Sedition Act of 1918, Debs, and the “Red Scare.”

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Guest Essayist: Juliette Turner

 

Twenty-Ninth President of the United States

Nickname: Charming Harding

Terms in Office: 1921-1923

Fast Stats

  • Born November 2, 1865, in Blooming Grove, Ohio
  • Parents: George Tryon and Phoebe Elizabeth Dickerson Harding
  • Died August 2, 1923, in San Francisco, California; age 57
  • Age upon Start of Term: 55; Age upon Death: 57
  • Religious Affiliation: Baptist
  • Political Party: Republican
  • Height: 6 feet
  • Vice President: Calvin Coolidge

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Guest Essayist: Daniel A. Cotter

 

The 1916 Presidential election pitted incumbent Democratic President Woodrow Wilson against Republican Supreme Court Justice Charles Evans Hughes.  The election was a very close one and had significant ramifications for the “progressive” movement.

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Guest Essayist: Professor Joerg Knipprath

 

Dissenting from the Supreme Court’s 1905 opinion in Lochner v. New York that found unconstitutional a maximum-hour law for bakery employees, Justice Oliver Wendell Holmes, Jr., declared, “[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Holmes’s point is valid at least to the extent that the Framers–most of whom adhered to the then-dominant mercantilism–did not encrypt the grand contours of a particular system of political economy in the Constitution’s provisions aligning and balancing individual liberties and governmental powers. Yet, the Constitution also protects personal rights whose exercise is more likely to be realized in a political system premised on fundamentally liberal (in the classic meaning) conceptions of the role of the government and the individual’s relationship to the State than in a system that rests on a different view of such essential matters.

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Guest Essayist: Professor William Morrisey

 

By August 1910, Theodore Roosevelt had been out of office for a year and a half. He was unhappy with President William Howard Taft’s performance. Although Roosevelt had effectively designated Taft as his successor and continued to esteem him personally, Taft wanted no part of the rising Progressive movement in American politics. By 1910, Roosevelt did, for reasons that remain controversial.

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Guest Essayist: Tony Williams

 

“The Professor and the Bull Moose” 1912 Election

In June, 1912, former President Theodore Roosevelt broke with the tradition of candidates not attending conventions and arrived at the Republican National Convention with great fanfare. He fervently announced, “We stand at Armageddon and we battle for the Lord.” He then proudly labelled himself a “Bull Moose.”

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Guest Essayist: Matthew Spalding

 

In The Federalist No. 47 James Madison asserted that “accumulation of all powers, legislative, executive, and judiciary, in the same hands…may justly be pronounced the very definition of tyranny.” Indeed, the importance of the separation of powers was so widely accepted by the American public in 1788 that Madison could confidently declare it to be “the sacred maxim of free government.” Today, however, government agencies routinely make, enforce, and adjudicate legally binding rules that have the full force and effect of laws passed by Congress. Such evidence leaves no doubt that there has been a revolutionary shift in the constitutional theory guiding American politics since the time of the American Founding. But how—and why—did this revolution come to be? The answer is to be found in a broad movement known as progressivism that came to dominate both the American academy and government in the late-nineteenth and early-twentieth century.

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Guest Essayist: Daniel A. Cotter

 

The 1908 Presidential election featured the incumbent Republican President Theodore Roosevelt following through on his promise to not seek a third term and encouraging the Republicans to nominate Secretary of War William Howard Taft.  While a number of third party candidates ran against Taft, the only non-Republican candidate who garnered any significant votes was the Democratic nominee, William Jennings Bryan.  Bryan had been the Democratic nominee for President in 1896 and 1900, but the 1908 election was the most lopsided of his three defeats in the race for President.

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Guest Essayist: Daniel A. Cotter

 

The United States Constitution is silent on the subject of corporations.    After the Civil War, as American society began to quickly evolve from agrarian to industrial, politicians from both major parties raised concerns about the rise of corporations, banks, and businesses, and the need for protection of the individual.  Against this backdrop, two important political figures emerged on the national scene.  William Jennings Bryan was a leader of the Populist Party (which would merge with the Democratic Party in 1896) who unsuccessfully ran for President in 1896, 1900 and 1908.  Republican President Theodore Roosevelt proposed a number of “progressive” initiatives through his “Square Deal” program and other policies and positions.  Other essays in this series cover the various Presidential elections in which Bryan and Roosevelt were their parties’ nominees. This essay compares the progressive and populist views of Roosevelt and Bryan, respectively.

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Guest Essayist: Steven Aden

 

“The Most Absurd Political Campaign of Our Time”:  Teddy Roosevelt, Alton Parker and the Election of 1904

The candidates who squared off in the presidential election of 1904, Republican President Theodore “Teddy” Roosevelt and Democrat Alton Parker, were both native to New York State; beyond that one commonality, they were a study in contrasts.  Parker was tall and rangy, but with a tentative demeanor that seemed to apologize for looming over others.  Parker resigned his post as the chief judge of the New York Court of Appeals, the state’s highest court, to run for the nation’s highest office.  True to his calling and by all accounts a thoughtful decision maker on the bench, Parker was quiet and professorial, and an unimpressive speechmaker with a voice like a cracked reed.   The barrel-chested, bull-voiced Roosevelt, on the other hand, had been tapped for the vice presidency by William McKinley on the strength of his renown as the Rough Rider who led his troops up San Juan Hill in 1898, as if he had carried the country on his shoulders to victory in the Spanish-American War.  The living embodiment of the national will that found its expression in “Manifest Destiny” and the Monroe Doctrine, Roosevelt was arguably the most physical president America has ever had.  Sometimes overcome by pent-up energy, Roosevelt would jump up from his seat in the Oval Office and hike in a straight line for five miles, climbing, jumping, and swimming all barriers natural or manmade he encountered on the way.  This exercise exhausted the few staffers and security officers who could keep up with him, but Roosevelt would return refreshed and invigorated.

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Guest Essayist: Karl Rove

 

America’s politics leading into the 1896 election looks familiar. The political system was broken: In five presidential elections, no one received 50% and for 20 of 24 years, America had divided government and gridlock in which little got done. The animosity between the parties was beyond normal partisanship: they were still fighting the Civil War.

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Guest Essayist: Juliette Turner

 

Twenty-fifth President of the United States

Nickname: Major McKinley

Terms in Office: 1897–1901; 1901

Fast Stats

  • Born January 29, 1843, in Niles, Ohio
  • Parents: William and Nancy Campbell Allison McKinley
  • Died September 14, 1901, in Buffalo, New York; age 58
  • Age upon Start of First Term: 54; Age upon Conclusion of First Term: 58
  • Age upon Start of Second Term: 58; Age upon Assassination: 58
  • Religious Affiliation: Methodist
  • Political Party: Republican
  • Height: 5 feet 7 inches
  • Vice President: Garret Hobart (1897–1899); Theodore Roosevelt (March–September 1901)

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Guest Essayist: Juliette Turner

 

Grover Cleveland

Twenty-second and Twenty-fourth President of the United States

Nickname: The Veto President

Terms in Office: 1885–1889; 1893–1897

Fast Stats

  • Born March 18, 1837, in Caldwell, New Jersey
  • Parents: Richard and Anne Neal Cleveland
  • Died June 24, 1908, in Princeton, New Jersey; age 71
  • Age upon Start of First Term: 47; Age upon Conclusion of First Term: 51
  • Age upon Start of Second Term: 55; Age upon Conclusion of Second Term: 59
  • Political Party: Democratic
  • Religious Affiliation: Presbyterian
  • Height: 5 feet 11 inches
  • Vice Presidents: Thomas A. Hendricks (1885) and Adlai E. Stevenson (1893–1897)

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Guest Essayist: Brion McClanahan

 

Portions of this essay are from the chapter “Grover Cleveland” in Brion McClanahan, 9 Presidents Who Screwed Up America and Four Who Tried to Save Her (Regnery History, 2016).

Grover Cleveland lost the 1888 election to Benjamin Harrison through voter fraud, and it involved what may be considered the first major lobby group in American history, the Grand Army of the Republic, a Union veteran’s organization that had deep pockets and the ability to swing elections in favor of the Republican Party, the real brawn behind the organization.

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Guest Essayist: Peter Roff

 

The election of 1884 was the first to put a Democrat in the White House since the Civil War. That it did, albeit narrowly was a testament to the way even the earliest stages of industrialization had transformed the country, setting it on the road to something far removed from its, rural, agricultural, protestant roots.

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Guest Essayist: Kirk Higgins

 

When one reflects on the history of the United States, the politics of the Gilded Age are often overlooked. Many find little value in understanding the intricacies of the political wheeling and dealing, often engineered by political machinery in both major parties. Nevertheless, these elections are as a part of the collective American consciousness as any before or since. They are central to understanding the American political character as it dealt with the aftereffects of the great national tragedy that was the American Civil War.

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Guest Essayist: Professor Forrest Nabors

Not long after the Civil War began, the poet Julia Ward Howe witnessed a procession of Union troops near Washington, D.C. Later that night, words stirred her from her sleep; she arose and caught them on paper. The lines of the Battle Hymn of the Republic that Howe penned that night alerted the hearer that God’s retributive justice had awakened, as Jefferson predicted (“his justice cannot sleep forever”), and at that moment, was moving upon the earth.

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Guest Essayist: Professor Forrest Nabors

 

We remember 1865 as the year when our Civil War ended. But by another measure, the standard of von Clausewitz, that war is politics continued by other means, the political conflict that erupted into formal war did not end until after Rutherford B. Hayes was sworn in as president in 1877. The period known as Reconstruction after the war continued that political conflict and was also violent, though the combatants were paramilitaries and its wars were not wars of maneuver with grand armies.

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Guest Essayist: Professor Forrest Nabors

 

The regular appearance of remarks on financial corruption in the proceedings of Congress in the Nineteenth Century might seem to indicate that American Government always was susceptible to the highest bidder. Rather, these comments are markers of Americans’ strong dislike and fear of corruption than they are proof that financial corruption was in fact eating the roots of their republicanism. The Americans had good reason to regard financial corruption in their government as an unmitigated evil, and so they loudly denounced it when they espied it, and publicly shamed, if not impeached, corrupt politicians upon discovery.

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Guest Essayist: Professor Forrest Nabors

 

The old bromide that politics makes strange bedfellows was never truer than during Reconstruction, from 1865-1877, a period of profound political chaos. Coalitions unexpectedly broke apart and unexpected coalitions formed. And never did America experience a presidential election that was more strange than the presidential election of 1872. The deep cause of this chaos was that the entire American political regime was undergoing change.

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Guest Essayist: Professor Forrest Nabors

 

How should we understand the laggard steps of the United States towards the legal enforcement of equal civil and political rights for black Americans? A prevailing sense among Americans today is that the end of legal discrimination was the result of historical evolution. That is, beginning from a morally retrograde starting point, the nation grew and gradually shed its impure prejudices. Partial victories opened new opportunities for more victories, until this evolution culminated in the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

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Guest Essayist: Professor Forrest Nabors

 

Fearless and firm under fire, unflaggingly modest despite reverent acclaim, and always practical – these outstanding qualities of Ulysses S. Grant are acknowledged, whether begrudgingly or enthusiastically, by the many critics of his presidency as well as by his defenders. Grant was quintessentially American, and yet as a leader he proved that his particular mixture of quintessentially American qualities represented the best of us, which might explain why his soldiers trusted him, the northern people adored him and the southern people respected him.

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Guest Essayist: James Legee

 

For nearly the first century of her existence, America had left a promise unfulfilled to both the souls that resided within her borders, as well as humanity at large.  That promise, largely taken for granted today, cost the blood of nearly five thousand in the American Revolution and hundreds of thousands in the Civil War, is the revolutionary idea expressed in the Declaration of Independence that every person is born equal.  The Civil War and Reconstruction fundamentally altered the Union, and most certainly for the better.  The Civil War Amendments, the 13th, 14th, and 15th, sought to fulfill the promise of equality for those enslaved.

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Guest Essayist: Professor Joerg Knipprath

 

When asked what might derail his agenda for his new Conservative Party government, former British Prime Minister Harold MacMillan is said to have responded, “Events, dear boy. Events.” That aptly describes how the political fortunes of war-time Presidents play out. It is surprisingly difficult for incumbent commanders-in-chief to win even if military campaigns are successful. True, Franklin Roosevelt won in 1944. But, even as the Allies were defeating the Axis powers, the popular Roosevelt won with the lowest percentage margin of victory of his campaigns. When elections occurred while the war effort appeared to be flagging, incumbents have fared badly. In 1952, as a result of the Korean War stalemate, President Harry Truman could not even win re-nomination by his own party, and the Democrats lost decisively. In a similar vein, in 1968, President Lyndon Johnson declined to pursue the Democratic Party nomination for re-election after the newscaster Walter Cronkite and other elements of the media turned the disastrous and strategic military defeat of the Viet Cong during the Tet offensive into a prevailing popular tale of American defeat.

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Guest Essayist: Daniel A. Cotter

The Election of 1864: Constitutional Issues Raised by Lincoln’s Conduct of the War

The 1864 election pitted the incumbent, Republican President Abraham Lincoln, against George McClellan of the Democratic Party.  It was the first election since 1840 in which an incumbent was renominated by his own party.  A major focus of the election was the Civil War and the divided Union.  Lincoln’s actions as President would also be considered by the electorate, which reelected him in a landslide.

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We are the only organization that utilizes the movies, music and television with the kids’ own works, to inspire Americans of all ages to learn about the U.S. Constitution by distributing their works through the national media.

Our Impact

The core of our mission is to educate Americans about the Constitution and the rights and liberties it provides and protects for all of us. We accomplish that mission through several programs, including our keystone program — the national We The Future Contest for kids. We also have an exciting new program that features Constituting America Founder and Co-Chair Janine Turner and daughter, National Youth Director Juliette, speaking in person and via “Skype” to classrooms around the country. Our 90 in 90 Study Program: History Holds the Key to the Future is a scholastic study with essays on the founding documents of our country, written by constitutional scholars from the best universities and law schools in the country. Here are a few of the major programs with the highlights and impact we have accomplished over the past six years (2010-2015):

  • We The Future Contest: We have received entries from students in 47 states and have awarded more than $95,000 in scholarship funding for the national We The Future Contest winners.
  • Mentoring Trips: Our winners have traveled on all expense paid trips to Philadelphia for performances at the National Constitution Center, educational tours and learned from historical interpreters! Last year they traveled to Nashville (mentored by Vince Gill), Hollywood (mentored by Gary Sinise) and Washington, DC (mentored by Bret Baier and Brit Hume) for meetings, performances and all dined with a constitutional scholar! This summer brings trips to Nashville (Lari White & Chuck Cannon); and New York (Sean Hannity & Monica Crowley & film producer Micheal Flaherty).

National Exposure & Impact Of Our Contest Winners’ Winning Works

  • NEW for 2016: We have hired Grassroots Promotion to promote winning songs with guaranteed radio station airplay, in addition to Rocking For Freedom CD available on iTunes & e-music platforms. To date, Joy Frost’s song has aired on 44 radio stations over 1,250 times with more spins being added daily & achieved top 20 ranking in Play MPE’s download ranking! Check out our past best song winner, Emily Keener, on this season’s The Voice!
  • Distribution of the Students’ Films and Constituting America’s Documentaries to Film Festivals: We The Future Contest winning short films and Constituting America produced documentaries were accepted at 8 film festivals across the country, with one winning two awards, reaching an audience in excess of 45,000!
  • Students’ PSA’s to Television: 31 TV stations are currently playing our We The Future Contest winning PSAs, reaching over 2 million households.

Resources for Schools

  • School Speaking & Skype Program: Now utilizing Skype and Google Hangouts featuring Janine Turner, Juliette Turner and our winners to conduct virtual classroom presentations promoting constitutional education – over 166 speeches to over 10,000 adults & students; with one minute “teaching clips” from the speeches reaching 100’s of thousands!
  • Distribution of Constituting America Documentaries: Produced and distributed 20,000 Constitutional Documentaries to schools.
  • Distribution of Our Constitution Rocks Books to Schools: Over 11,000 Our Constitution Rocks books have been distributed to teachers, school administrators, after school programs, and legislators at state and federal level by an enthusiastic outside donor.
  • 90 in 90 Essay Project: Academic studies on the Federalist Papers, the Constitution, the Amendments, and the Classics that inspired the Constitution resulted in 632 essays contributed by 98 constitutional scholars. Last year’s study on executive overreach had over 36,000 social media shares! This year’s study entitled “The Intrigue of Presidential Elections And Their Constitutional Impact” launched February 15, 2016.

Spreading The Word

  • Patriot Clubs: 27 active Patriot Clubs in 13 states, working locally and regionally to promote our programs, education and awareness among adult communities and students.
  • Social Media: Constituting America and Janine Turner’s combined Facebook accounts have over 196,230 fans and combined Twitter accounts have over 23,900 followers.
Guest Essayist: David J. Shestokas

 

“… if constitutionally we elect a President, and therefore you undertake to destroy the Union, it will be our duty to deal with you as old John Brown has been dealt with.”
– Abraham Lincoln, December 3, 1859

John Brown had been hanged for treason on December 2, 1859.  Brown had lead a raid on the federal arsenal in Harper’s Ferry, Virginia on October 16.  Brown and his group had intended to secure weapons to arm slaves for a revolt against their masters. The United States Marines, commanded by Colonel Robert E. Lee captured the raiders, foiling the plan. On November 2, Brown received his death sentence.

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Guest Essayist: J. Eric Wise

 

“One would start with great confidence that he could convince any sane child that the simpler propositions of Euclid are true; but, nevertheless, he would fail, utterly, with one who should deny the definitions and axioms. The principles of Jefferson are the definitions and axioms of free society.”
– Abraham Lincoln, Letter to Henry L. Pierce in 1859

Euclid’s geometry begins with five postulates or axioms (e.g., the first postulate, a straight line may be drawn between any two points) that cannot be demonstrated from other principles. The axioms to which Lincoln refers are, of course, the “self-evident” propositions in the Declaration of Independence that all men are created and equal and entitled to inalienable rights. Just as a right triangle cannot be comprehended if the first postulate of Euclid is denied, to Lincoln’s understanding a free society cannot be constructed if Jefferson’s postulates of equality and inalienable right are denied.

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Guest Essayist: Daniel A. Cotter

 

The election of 1860 featured a number of candidates vying for the Presidency, with the tensions over slavery at the forefront.   Abraham Lincoln would carry the North for the Republican Party and win the election over numerous candidates, including three contenders that garnered significant votes.  Other essays in this series cover the 1860 Presidential election and certain of the candidates.  This essay focuses on John Bell, the 1860 nominee for President from the newly formed Constitutional Union Party, and his understanding of the Constitution.

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Guest Essayist: Professor Joerg Knipprath

 

Election of 1860

John C. Breckinridge of Kentucky entered the year 1860 as Vice President, having been elected to that office in 1856 as a Democrat from the Stephen Douglas wing of the party. Taking the oath of office when barely 36 years old, one year above the constitutional minimum, he remains the youngest man elected to that office. When the Whig party collapsed because its intrinsic identity as a national party was ground up between the sectional millstones over slavery, the Republican Party emerged as, initially, a staunch anti-slavery movement. Buoyed by its success in the 1858 congressional elections, the party expanded its political agenda. It strongly supported the Union, and moderated, but did not abandon, its official opposition on slavery. By 1860, it was the party of the North, which former Northern Whigs joined enthusiastically.

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Guest Essayist: David J. Shestokas

 

“Tell them to obey the laws and uphold the Constitution.”
Stephen A. Douglas, deathbed instructions for his sons, June 3, 1861[1]

Stephen Douglas’ instruction to his sons to uphold the Constitution should have been quite clear. He had spent three decades in public life, including 18 years in the United States Congress. He had given hundreds if not thousands of speeches on the critical constitutional issues of his day:  organization and admission of new states and the regulation of slavery in territories purchased from France and won in war with Mexico.

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Guest Essayist: James D. Best

 

The election of 1860 would polarize the nation and challenge the durability of the Constitution. In 1787, the Constitutional Convention in Philadelphia established a new government for the United States of America. For over seventy years, the country had fought fierce political battles over slavery and federalism. Compromises, pacts, and informal precedents managed to hold the country together. This still-young nation would soon become engulfed in a savage civil war that would eventually complete the work begun in 1787.

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Guest Essayist: James D. Best

 

The Making of the President 1860—Mathew Brady and the Cooper Union Address

Abraham Lincoln won the 1860 presidential campaign, yet on a national level, he had served only a single term in the House of Representatives. He had gained renown from his famed debates with Senator Douglas, but remained a minor political figure. How did he make himself a viable candidate? He pulled off this feat in a single day—Monday, February 27, 1860.

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Guest Essayist: Professor Joerg Knipprath

 

The 1850s was, for the American political party system, a decade of “creative destruction,” to borrow a concept from the Austrian economist Joseph Schumpeter. This process of collapse and rebirth, sometimes referred to as a political “realignment,” was triggered by the internal contradictions of a constitutional order resting simultaneously on the animating principle of liberty and the continued protection of slavery. The catalyst was the 1854 Kansas-Nebraska Act, the Lewis Cass-Henry Clay-Stephen Douglas “popular sovereignty” approach to slavery in the territories, and the resultant spectacle of “Bleeding Kansas” as the preface to the Civil War.

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Guest Essayist: James D. Best

 

1856 Race for President—James Buchanan defeats Millard Fillmore and John C. Fremont

The political scene in 1856 was chaotic. The Whig Party had collapsed because of a regional dispute over slavery. The American Party (Know-Nothings) had scooped up Whig remnants to rail against immigrants and Catholics. The new Republican Party, formed to fight slavery, feverishly pulled together abolitionists from wherever they could find them. Democrats, the last functioning national party, worked hard to stifle their own riff between the free and slave states. These three parties, one wounded and two newborn, would fight for the presidency. A dubious prize since seven presidents in a row had served a single term or less.

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Guest Essayist: Daniel A. Cotter

 

The 1852 election pitted Franklin Pierce of the Democratic Party against General Winfield Scott of the Whig Party, John P. Hale of the Free Soil Party, Daniel Webster of the Union Party, Jacob Broom of the Native American Party, and George Troop of the Southern Rights Party.  In nominating Pierce, the Whig party refused to renominate the incumbent, President Millard Fillmore.  Pierce won the election in a significant Electoral College landslide over General Scott, 254-42.  As with the 1848 election, and for the next several presidential elections, a major focus of the election was on the question of slavery, especially the Fugitive Slave Act of 1850 and the Compromise of 1850.

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Guest Essayist: Daniel A. Cotter

 

The 1848 election pitted former President Martin Van Buren of the Free Soil Party against Zachary Taylor of the Whig Party, Gerrit Smith of the Liberty Party, and Lewis Cass of the Democratic Party.  The incumbent, President James Polk, did not seek reelection due to his declining health and his prior promise to serve only one term.  A major focus of election was the question of slavery and whether it would extend to the Western states.   Zachary Taylor narrowly won the election, becoming the third of four Whig Party members to become President of the United States.  As described below, Van Buren’s candidacy on behalf of the Free Soil Party likely influenced the outcome in Taylor’s favor.

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Guest Essayist: Professor Joerg Knipprath

 

The Missouri Compromise of 1820, it has been said often, delayed the Civil War for a generation. The act could not, however, eliminate the reality of slavery and the inherent contradiction of such an institution existing in a society founded on the idea of freedom. The Compromise had loaded the dice in favor of at least a gradual erosion of the slave states’ power, thereby also virtually guaranteeing a serious clash, if those states eventually found themselves in an existential political trap.

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Guest Essayist: Tony Williams

 

Fifty-Four Forty or Fight!

In the early 1840s, thousands of settlers from the Midwest traveled to Independence, Missouri, where they loaded hundreds of pounds of food, tools, and supplies on their oxen-drawn wagons.  They launched an epic overland trek 2,000 miles to the Oregon Territory and braved its dangers in order to participate in the fur trade in earlier decades, but now mostly for farm land.  The individual decisions of these ordinary Americans in search of opportunity in the West would have implications for international affairs and the election of 1844.

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Guest Essayist: Daniel A. Cotter

 

The election of 1844 was notable in that the incumbent Whig President, John Tyler, who ascended to the Presidency when President William Henry Harrison died one month after his inauguration, was not nominated by his party to seek a second term as President.  Tyler’s focus on the annexation of Texas as a slave state set the themes for the 1844 presidential election and also led to James K. Polk becoming the Democratic President.

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Guest Essayist: John S. Baker

 

Presidential Leadership: Rating the Best and the Worst in the White House, a Wall Street Journal Book; James Taranto and Leonard Leo, Editors; Free Press, 2004. Reprinted with permission.

 

Tyler understood the president’s role under the Constitution. His defense of the presidency against Congress and his own party should have earned him a more appreciated place in history.

 
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Guest Essayist: Lisa Ice-Jones

 

“The President holds the sword of the community” and the Congress “not only commands the purse but prescribes the rules.” The “judiciary has no force or will, but merely an opinion.” Alexander Hamilton states all of this in his Federalist paper #78. The framers knew this separation of power was an important one. Knowing how to wield a sword designated an American patriot but could not and would not be the sole source of power. (Paulsen, 2015)

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Guest Essayist: Daniel A. Cotter

 

The Election of 1836: The Tariff Issue, Nullification and the Constitution

The 1836 Presidential election saw Democratic incumbent Vice President Martin Van Buren win the election in a campaign that featured four candidates from the newly-formed Whig Party running against Van Buren by region against a background of Southern threats of nullification and secession, caused chiefly by opposition to federal tariff laws as well as by the issue of slavery. The two-term incumbent, Democrat President Andrew Jackson, decided not to seek a third term and supported his Vice President, Van Buren.  Jackson’s second term and the tariff issue and nullification strategy helped lead to the formation of the Whig Party, which was formed in 1834 in opposition to Jackson and his policies.  The 1836 election was the first in which the Whig Party sought to have a party member as President.  The Whig Party strategy to regionalize the electoral votes in 1836 failed, with Van Buren capturing the Presidency.

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Guest Essayist: Lisa Ice-Jones

 

Martin Van Buren was victorious over the Whig Party and its slate of candidates in the election of 1836, but the preparation for this victory had been a long time coming.  Van Buren had been championing the causes of Jefferson’s Democratic Republican party since early in his career.  He was, through his affiliation with his own political machine the “Albany Regency”, described as one of them and having great ability, great industry, indomitable courage and strict personal integrity.”  He later illustrated that he was capable of shrewd political maneuvering.    He chose to “tred generally in the footsteps of President Jackson” (Moore, 2007) but he also knew when to distance himself.  Because Jackson was a popular President with the people, they liked Van Buren’s alignment with Jackson.  They also liked the fact that Jackson trusted Van Buren even though Henry Clay, with his political magnetism, tried to convince the people that Van Buren was Jackson’s puppet and that Jackson would be controlling him from behind the scenes.

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Guest Essayist: Daniel A. Cotter

 

The election of 1832 featured the incumbent Democratic President, Andrew Jackson, against National Republican Party candidate Henry Clay as the main contender.  Jackson easily won re-election.  A third party, the Anti-Masonic Party, also nominated a candidate, William Wirt, who received just under 8% of the popular vote but only 7 of the 286 Electoral College votes.  Formed as a single-issue party, the Anti-Masonic Party had a short lifespan on the American political stage.

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Guest Essayist: Professor Joerg Knipprath

 

“The Bank, Mr. Van Buren, is trying to kill me, but I shall kill it,” President Andrew Jackson ominously declared on July 4, 1832, to his political confidante and future vice-president, Martin Van Buren, during the apex of his struggle with the Second Bank of the United States.

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Guest Essayist: Professor William Morrisey

 

1828: The General and the Presidency

Americans remember Andrew Jackson’s victory over John Quincy Adams in 1828 as the General’s revenge for his narrow loss to Adams four years earlier, when no candidate received a majority in the Electoral College, the election devolved to Congress, and Henry Clay threw his support to the man most likely to endorse his “American System”—the network of public works or “internal improvements” Clay fought for throughout his career. In accepting the grateful president-elect’s offer of the Secretary of State, Clay opened himself and his ally to the charge of a  “corrupt bargain”—a charge Andrew Jackson fervently believed true, and one he and his political allies kept alive for the next four years.

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Guest Essayist: Professor Mark Cheathem

 

Andrew Jackson’s defeat of John Quincy Adams in the 1828 presidential election has often been heralded as the beginning of the second American party system. While historians today offer a more complicated interpretation of the two-party system that emerged in the 1820s and 1830s, the 1828 contest between Jackson and Adams was unquestionably a pivotal turning point in American political history.

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Guest Essayist: Tony Williams

 

The election of 1824 was eerily similar to the 2016 campaign.  It was characterized by fierce personal attacks launched by the surrogates of candidates and by the candidates who accused each other of corruption.  Several establishment candidates ran but failed to rouse the base.  One highly popular candidate ran as an anti-establishment, Washington outsider and was widely accused of being a demagogue.  The partisan media lined up for their favorite candidates.  Economic issues ruled the day with many concerned about government intervention in the economy while others railed against “the interests.”

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Guest Essayist: Professor Joseph Postell

 

The 1824 presidential election produced the infamous “Corrupt Bargain,” in which the House of Representatives selected John Quincy Adams as President rather than Andrew Jackson, who finished first in the popular vote and in the Electoral College (but did not reach a majority in either).  More important, however, is the fact that the 1824 election led to the creation of strong political parties and the system of national nominating conventions for the two main parties.

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Guest Essayist: Professor Robert Lowry Clinton

 

McCulloch v. Maryland, 4 Wheaton (17 U.S.) 316 (1819), is widely regarded as the landmark case defining the boundaries of power between national and state government in the American federal system. In McCulloch, the United States Supreme Court, in a unanimous opinion written by Chief Justice John Marshall, explored the extent of implied congressional power under the Necessary and Proper Clause of Article I, Section 8 of the Constitution. The Court also determined the effect of the National Supremacy Clause in Article VI when an exercise of state authority conflicts with a national law.

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Guest Essayist: Daniel A. Cotter

 

The Election of 1820: The Uncontested Race and the Missouri Compromise

The election of 1820 was the last presidential contest in which the ticket ran virtually unopposed.  President James Monroe and his Vice President, Daniel D. Tompkins, won all but one electoral vote, which went to John Quincy Adams.  The only other president elected without opposition had been George Washington in 1788 and 1792.  The Federalist Party ran no presidential candidate and the election effectively marked the end of the Federalist Party.  Monroe’s re-election came in the wake of Congressional debate on Missouri Compromise, which had been passed by the Senate and was still pending in the House at the time of the election.

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Guest Essayist: Professor Kyle Scott

 

The debate over the First and Second Banks of the United States expose the difficulties of constitutional interpretation. Additionally, the debate surrounding the Second Bank of the United States is a study of how principles can give way to political expediency. The following essay will provide a brief overview the Banks, discuss the constitutional debate surrounding the Banks, and then discuss the Second Bank as it relates to the presidential election of 1816 in which James Monroe succeeded James Madison by defeating Rufus King.

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Guest Essayist: Professor Joerg Knipprath

 

Rufus King: delegate from Massachusetts to both the Confederation Congress and the Constitutional Convention in Philadelphia (where, he was one of five members of the influential Committee of Style), long-time U.S. Senator from New York, unsuccessful candidate for governor of New York, two-time American ambassador to Great Britain (where his first successor was James Monroe), and three times unsuccessful Federalist Party candidate for high executive office in the general government—twice for vice-president and once for president. It was this patriot’s lot to lead the disgraced and disintegrating rump of the Federalist Party in its last national campaign.

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Guest Essayist: Sam Agami

 

The waging of war is the greatest challenge any person in national authority can face.  It is an all-consuming task.  It is an undertaking that can destroy both leader and nation.  Of all governments, Constitutional Republics face the greatest challenge.  Conscripting armies, rationing materials, the issuing and obeying of unquestionable orders; all of these go against the very nature of a Constitutional republic.  In a time where national sovereignty is at stake, it is tempting to overlook the importance of core principles such as the consent of the governed and rule of law.  How many republics across the globe have transitioned into military dictatorships that started as temporary states of emergency?   As Abraham Lincoln so famously reflected in Gettysburg in 1863, “…we are engaged in a great civil war, testing whether that nation or any nation so conceived (in liberty) and so dedicated can long endure…”    

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Guest Essayist: Tony Williams

 

On June 22, 1807, the American frigate USS Chesapeake set sail from Norfolk, Virginia for the waters of the Atlantic to join in a squadron heading to the Mediterranean to battle the Barbary Pirates.  The 50-gun British warship HMS Leopard immediately pounced upon the ship and sought to board her seeking deserters from the Royal Navy.  When American Commodore James Barron refused the demand, the Leopard fired a warning shot and then loosed a deadly broadside at the Chesapeake.  The thunderous barrage was followed by others, and the beleaguered American ship could only offer meager resistance.  As the smoke drifted around the opposing ships, three American sailors lay dead and eighteen writhed in agony from horrific wounds.  Barron had no choice but to surrender, and the British seized four seamen though only one was a British subject.

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– – Friday, February 19, 2016
The Washington Times

Let it be noted: Pinocchio’s nose no longer grows when he lies. And it’s a real shame. For decades Pinocchio served as the shining example for youngsters like me, warning us to never lie. “If you lie,” our parents said, “everyone will find out, because your nose will grow like Pinocchio‘s!” Out of fear of having out nose extend far out of our face, we kept our tongue from slipping and our words honest.

But those days are now over. Pinocchio wished upon a star for a new nose. Today, Pinocchio has utilized the magic of modern medicine, paid for a nose job, and never again has to worry about his nose growing. Click here to read more!

Juliette Turner is the National Youth Director of Constituting America.

– – Friday, February 12, 2016
The Washington Times

If one were to look through the list of America’s past presidents, one would quickly conclude that many of the men who held our nation’s highest office would not have reached the Oval Office if they ran today. For example, James Madison’s soft voice and small stature would have branded him as too meek and complacent to serve, Andrew Jackson’s mistake of marrying a technically-still-married-woman would have been the subject of countless attack adds, Abraham Lincoln’s strange looks and history of deep depression would have deterred many voters, Theodore Roosevelt’s choice to leave his infant daughter behind while he wrangled the wild west would have been looked upon as unsound judgment, Warren Harding’s extramarital flings would have inevitably surfaced quickly in the primaries, Franklin Roosevelt’s fragile health would have caused his opponents to label him as unable to serve…and the list goes on and on. Click here to read more.

Juliette Turner is the National Youth Director of Constituting America.

Guest Essayist: Professor Robert McDonald

 

The best argument against Thomas Jefferson’s 1804 reelection might well have been his presidency’s greatest success. The purchase of Louisiana doubled the nation in size, ensured the free flow of commerce along the Mississippi, and removed from the continent the threat of Napoleon Bonaparte’s France, which would soon take possession of the territory from Spain. Yet it was also unconstitutional—as Jefferson understood.

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Guest Essayist: James Legee

 

The election of 1804 is markedly less significant than the “Revolution of 1800.”  While the triumph of Jefferson’s Democratic-Republicans over Adams and Hamilton’s Federalist Party is noted by Jefferson as an event that “will ameliorate the condition of man over a great portion of the globe,” 1804 failed to merit such hope for the future of humanity.  It would, however, measure the ability of the new Constitution to remedy itself through the amendment process and lead us to questions on the nature of the executive branch and what representation in a republic means.

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Guest Essayist: Professor Joerg Knipprath

 

Today, having the House of Representatives elect the president seems strange, almost freakish. But to the Framers, the participation of the House in this process was expected to be common-place. The problem arises out of the practical need for at least a two-step procedure. There first must be a mechanism to nominate a number of candidates for the office and, second, a process to select the winner from those nominees.

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Guest Essayist: Tony Williams

 

In the summer of 1798, the capital of Philadelphia was gripped by several fevers.  Ships from the tropical West Indies brought Yellow Fever to several port cities including Philadelphia, causing thousands to flee for their lives as the number of victims escalated.  The epidemic, however, hardly compared to the political fever taking hold over the country.

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Guest Essayist: Kevin Gutzman

 

John Adams’ narrow victory over Thomas Jefferson in the election of 1796 foreshadowed the contentious political environment of Adams’ sole term. Soon enough, the Republican opposition went into full battle mode, and Adams’ refusal to respond by playing party chieftain goes a long way toward explaining his narrow loss in 1800. Read more

Guest Essayist: Professor Joerg Knipprath

Six months before his retirement from the presidency, George Washington gave a farewell address to the nation. Among several memorable passages is his warning about the evils of the spirit of party, particularly as it manifests itself in republican forms of government. “This spirit, unfortunately, is inseparable from our nature having its roots in the strongest passions of the human mind. It exists under different shapes in all governments…; but in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.”

There must have been more than a small measure of regret in that message. Washington had striven to govern as a president of all, above the pettiness of partisanship. Events and the “natural inclinations of men” so prominently borne by politicians denied him success. Indeed, the passage of time in office corrodes every presidency and, for an increasing portion of the population, turns familiarity into contempt for the occupant. This malignancy affected even Washington by 1796. Toward the end of his term, the President was frequently attacked in speeches and writings. Jefferson wrote to a friend, deriding “men who were Samsons in the field and Solomons in the Council” whose heads had been “shorn by the harlot England.” The letter conveniently found its way into print, where the readers readily understood his reference to Washington, Hamilton, and Adams. The reliably partisan Jeffersonian organ, the Philadelphia Aurora, edited by Madison’s Princeton University classmate Philip Freneau, rejoiced on the occasion of Washington’s retirement that “this day ought to be a Jubilee in the United States…for the man who is the source of all the misfortunes of our country, is this day reduced to a level with his fellow citizens.” Jefferson’s machinations behind Washington’s back almost persuaded the exasperated President earlier in his term to fire Jefferson, with the latter resigning in time. Washington, who knew how to carry a grudge, never spoke to Jefferson again.

How had it come to this? The first term of the Washington administration had been consumed with domestic policy concerns, primarily establishing the new union on a firm economic and constitutional footing. That had been largely achieved with the adoption of Hamilton’s domestic program and the settlement of the location of the new capital city. As well, Washington’s personal propriety and political sobriety had established sound precedents for his successors about the constitutional dimensions of the presidency and the appropriate conduct in office of a republican head of government. There had been difficulties with the British and French due to the incipient political turmoil of the French Revolution, which had stirred some passions among Americans. Moreover, British policy regarding the Indian tribes and the retention of border forts along the old northwest frontier were irritants and, for some, a mark of humiliation. All things considered, however, by most marks the country in 1792 was more stable than it had been since independence was declared from the mother country in 1776.

The second term of the administration was dominated by foreign events, a trend that even intensified after Washington left office. The government was, to put it mildly, an unwilling participant in these affairs; the nation was, to put it bluntly, woefully unprepared to participate.

But participate they must, and those events fractured America’s political system along the lines of the conflicting personalities and visions of Hamilton and Jefferson.

European big power politics rose to another dimension in 1793, with the beginning of the revolutionary Reign of Terror in France, the French declaration of war against Britain and Spain, and the arrival of “Citizen” Genet as French minister to the U.S. As Genet made his way around the U.S., he founded Jacobin Clubs and was feted by the pro-French Jeffersonians. Much to the dismay of Washington and the shock—feigned or real—of the Anglophile Hamilton, Genet agitated openly for Americans to pressure the administration into active support for France. On the other side, the British navy seized American merchant ships, precipitating calls for war from pro-French factions. Ideological fervor seized the American populace. Still, admiration or disdain for the respective European powers was not just based on views about revolution, but was also tied to extraneous regional and local interests and rivalries. While the emerging commercial North favored Britain and the agrarian South, suspicious of “stock-jobbers” (as Jefferson described the financial interests), favored France, local interests broke up the pattern.

President Washington responded with his “Neutrality Proclamation” in April, 1793. The administration’s opponents in Congress argued that this was not a constitutional power of the president, and that Washington had usurped Congress’s powers. Writing pseudonymously as Pacificus, Hamilton promptly published seven essays in support of the proclamation. He urged not only that it was the “duty of the executive to preserve peace” until Congress exercised its constitutional power to declare war. Rather, he claimed a broader implied power for the executive to act for the interest of the country unless the Constitution clearly prohibited him from doing so or assigned the role to another branch, a position that has been enduringly popular with presidents since then. Jefferson wanted to respond, but, as a member of the cabinet, believed it better to enlist James Madison’s services. Madison was extremely reluctant to participate, but eventually penned five responses under the name Helviticus.

Popular reaction against the Whiskey Rebellion by western Pennsylvania farmers over the excise tax on alcoholic spirits, as well as Jefferson’s reluctance to distance himself decisively from the French Revolution as news of the Terror reached American shores, helped produce a Federalist victory in the1794 congressional election. Soon thereafter, as the terms of the recently-negotiated Jay Treaty with Great Britain were debated in the halls of Congress and in the press, political passions reached a peak. The treaty was generally favorable to the United States in that it prevented a war with Britain that the Americans could not afford and also brought relative peace to the Northwest frontier. It was founded on a bilateral optimism about the future of the parties as trading partners.

However, some critical issues about compensation for slaves and payment of sequestered debts were left unresolved and to be settled by future commissions. Led by their philosophical leader, the Republicans saw this, as Jefferson wrote, “as a treaty of alliance between England and the Anglomen of this country, against the legislature and people of the United States.” In reality, what stung the opponents was that the treaty embodied a rejection of their foreign policy and, by extension, their ideological premises. Matters were certainly not improved for them by the fact that the terms of the treaty itself were the work of Alexander Hamilton, supported by the diplomatic skill of John Jay.

Opposition to the Jay Treaty galvanized what had been a loose faction, primarily in Congress, into an organized political party. They took the name Jefferson had given them informally, “Republicans,” to imply that their opponents were monarchists. The Federalists followed suit. Their designation came from Hamilton’s desire to cast his faction as defenders of the Constitution and his opponents as Antifederalists. Over the next two years, both sides organized local clubs and set up friendly newspapers. The Jeffersonians, especially, were aware of the need to move beyond their base in the South and courted politically disaffected groups in the North and West.

The election of 1796 pitted Vice-President John Adams of Massachusetts and Thomas Pinckney of South Carolina for the Federalists against Thomas Jefferson of Virginia and Aaron Burr of New York for the Republicans. Alexander Hamilton, who had left the cabinet in 1795, believed himself to be the proper leader of the Federalists. He had Washington’s favor and managed to place his associates in several cabinet positions. As well, his many connections broadened his influence. Under the voting rules of the time, each presidential elector cast two undifferentiated votes. The winner (assuming this constituted a majority of the electors appointed) became president, and the runner-up was vice-president.

Adams’s intellect and personal honesty were generally acknowledged. But there was a perceived flaw. Benjamin Franklin had characterized him as “always honest, often great, but sometimes mad.” More likely, Adams simply lacked the “talents for low intrigue, and the little arts of popularity” that Hamilton once had warned against in the Federalist Papers concerning the selection of the president. Adams’s dislike of the capital’s society and his propensity to pomposity did not help. The debacle of Adams’s proposal for a sonorous and expansive formal title for the president had made him a laughing-stock and tagged him with the title “His Rotundity.”

Hamilton believed Adams to be emotionally unstable and, hence, unsuited for the office. He maneuvered to place Pinckney in the presidency, instead. He expected the northern electors to vote for the party ticket, but bargained with Edward Rutledge, a Jeffersonian politician, to have the South Carolina electors vote for Jefferson and Pinckney. The plan became known. Enough northern electors voted for Adams and not-Pinckney that Adams narrowly won, 71 votes to 68. Unfortunately, Pinckney was third. Adams’s erstwhile and future friend, Jefferson, was second and became vice-president. Their current positions as heads of opposing parties did not bode well for amicable government. Worse, for the Federalists, the unifying Washington was gone, and the ambitious Hamilton nipped at Adams’s flanks. The clouds that had appeared on the political horizon in the previous election now had gathered. If and when the storm broke, and how severe the deluge would be, would have to await the next election.

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

Guest Essayist: Professor Joerg Knipprath

 

In early 1790, in just the second year of the general government under the new constitution, Treasury Secretary Alexander Hamilton delivered on the charge made to him by the first Congress in 1789 to prepare a plan for the “adequate support of public credit.” This First Report on the Public Credit proposed to pay off the foreign and domestic debt at par through new U.S. bonds, which, in turn, were to be paid off through import duties and excise taxes, such as those on whiskey. To help tie disparate creditors of the states to the national program, the general government also would assume the Revolutionary War debts of the states. Later that year, he submitted the related Report on the Bank of the United States. This analogue to the Bank of England, but owned principally by private investors and with branches set up in various states, was to provide the core of a nascent banking system necessary for the country’s commercial development.

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Guest Essayist- James D. Best

 

The First Presidential Campaign—George Washington, 1788-89

George Washington won the first presidency under the newly established Constitution. He ran unopposed, professed not to want the job, remained for the most part at Mount Vernon, and yet won unanimously. Many believe he never campaigned, but instead acquiesced to a call to duty from his countrymen. Perhaps it was not so simple.

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Guest Essayist: Tara Ross

 

Our founding generation would doubtless be surprised to discover that America’s presidential election system has become the subject of some controversy.

Indeed, our Founders were rather proud of the process they’d created.

“The mode of appointment of the Chief Magistrate of the United States,” Alexander Hamilton wrote in 1788, “is almost the only part of the system . . . which has escaped without severe censure . . . . I venture somewhat further, and hesitate not to affirm that if the manner of it be not perfect, it is at least excellent.”

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Guest Essayist: Tara Ross

The Electoral College may be one of America’s most misunderstood institutions.  How often do you hear a media outlet or school textbook gratuitously bash our presidential election system as “outdated” or “archaic”? It’s said to be a relic of the horse and buggy era—a process created by slaveholding Founders who didn’t trust the people to govern themselves.

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Monday, February 15, 2016
Introduction by Constituting America Founder & Co-Chair, Janine Turner & her daughter, Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Tuesday, February 16, 2016
Why Was The Electoral College Created? – Tara Ross, author of Enlightened Democracy, the Case for the Electoral College.

Wednesday, February 17, 2016
Does The Electoral College Still Work? – Tara Ross, author of Enlightened Democracy, the Case for the Electoral College. 

Thursday, February 18, 2016
(1789) George Washington: The First Election Under the New Constitution – James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, and the Steve Dancy Tales

Friday, February 19, 2016
(1792) George Washington Sets the Tone for America as Its First Elected President – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Monday, February 22, 2016
(1796) John Adams Defeats Thomas Jefferson – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Tuesday, February 23, 2016
(1800) Thomas Jefferson Defeats John Adams: The First Peaceful Transfer of Presidency From One Political Party to Another – Kevin Gutzman, Professor and Chairman, Department of History, Western Connecticut State University and Author, James Madison and the Making of America

Wednesday, February 24, 2016
(1800) The Election Of 1800: Constitutional Implications Of The Alien & Sedition Acts – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Thursday, February 25, 2016
(1800) Electoral College Tie Between Jefferson and Burr, Throwing an Election Into the House of Representatives for the First Time – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Friday, February 26, 2016
(1804) Thomas Jefferson Defeats Charles Pinckney: The Significance of the 12th Amendment – James Legee, Program Director, The Freedoms Foundation at Valley Forge; Adjunct Professor, Albright College, PA

Saturday, February 27, 2016
(1804) The Constitutional Significance of the Louisiana Purchase: An Election Issue – Robert McDonald, Professor of American History, United States Military Academy, West Point; Author, Confounding Father: Thomas Jefferson’s Image in His Own Time (forthcoming)

Monday, February 29, 2016
(1808) James Madison Defeats Charles Pinckney: The Embargo Act of 1807 – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Tuesday, March 1, 2016
(1812) James Madison Defeats De Witt Clinton: The Issues of a Wartime Election – Sam Agami, History Teacher, Princess Anne Middle School, VA

Wednesday, March 2, 2016
(1816) James Monroe Defeats Rufus King: The Hartford Convention – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Thursday, March 3, 2016
(1816) Constitutional Issues Surrounding the Second Bank of the U. S. – Kyle Scott, Professor of Political Science, University of Houston, TX; Author, The Federalist Papers: A Reader’s Guide

Friday, March 4, 2016
(1820) James Monroe Won Unopposed: The Missouri Compromise – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Monday, March 7, 2016
(1820) McCulloch v. Maryland: A Campaign Issue – Robert Lowry Clinton, Professor and Chair Emeritus, Department of Political Science, Southern Illinois University Carbondale; Author, Marbury v. Madison; Judicial Review

Tuesday, March 8, 2016
(1824) John Quincy Adams Defeats Henry Clay, Andrew Jackson, and William Crawford: Constitutional Implications of the Rise of Party Nominating Conventions and the Empowerment of Popular Votes in Elections – Joe Postell, Professor of Political Science, University of Colorado at Colorado Springs, CO

Wednesday, March 9, 2016
(1824) The Second Instance of an Election Decided in the House of Representatives – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Thursday, March 10, 2016
(1828) Andrew Jackson Defeats John Quincy Adams: The Two-Party System – Mark Cheathem, History Professor, Cumberland University, TN

Friday, March 11, 2016
(1828) Controversy Over Andrew Jackson’s War Record and the Question of Civilian Control Over the Military – William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; Author, Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism

 Monday, March 14, 2016
(1832) Andrew Jackson Defeats Henry Clay, William Wirt: The Re-Chartering of the Bank of the U.S. – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

 Tuesday, March 15, 2016
(1832) The Anti-Masonic Controversy – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Wednesday, March 16, 2016
(1836) Martin Van Buren Defeats William Henry Harrison, Daniel Webster, Hugh White: The Unusual Practice of Running Three Candidates by One Party (the Whigs) in Different Parts of the Country – Lisa Ice-Jones, Administrator, President William Henry Harrison’s Grouseland Mansion and Museum

Thursday, March 17, 2016
(1836) The Tariff Issue and the Constitution – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Friday, March 18, 2016
(1840) William Henry Harrison Defeats Martin Van Buren: The Appeal of Running Military Heroes for President and the Issue of Generalship as a Qualification for Executive Office – Lisa Ice-Jones, Administrator, President William Henry Harrison’s Grouseland Mansion and Museum

Saturday, March 19, 2016
John Tyler (1841-45) excerpt from “Presidential Leadership: Rating the Best and the Worst in the White House,” a Wall Street Journal Book; James Taranto and Leonard Leo, Editors; Free Press, 2004. – John S. Baker, Professor of Law Emeritus, Louisiana State University Law School

Monday, March 21, 2016                                                          
(1844) James K. Polk Defeats Henry Clay, James Birney: Texas Annexation as it Related to the Issue of Slavery – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Tuesday, March 22, 2016
(1844) The Issue of Oregon Territorial Boundary – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Wednesday, March 23, 2016
(1848) Zachary Taylor Defeats Martin Van Buren, Lewis Cass: Popular sovereignty in the territories, which was Cass’s issue and which would continue to affect U. S. Constitutional politics for the next decade – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Thursday, March 24, 2016
(1848) Abolitionism and the Constitution – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Friday, March 25, 2016
(1852) Franklin Pierce Defeats Winfield Scott, John Pitale: The Controversy Over the Fugitive Slave Act of 1850 – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Monday, March 28, 2016
(1856) James Buchanan Defeats Millard Fillmore, John C. Fremont: The Kansas-Nebraska Act – James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, and the Steve Dancy Tales

Tuesday, March 29, 2016
(1856) The Rise of the Republican Party – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Wednesday, March 30, 2016
(1860) Abraham Lincoln’s Cooper Union Address and Mathew Brady’s Lincoln Photo: The Making of the President – James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, and the Steve Dancy Tales

Thursday, March 31, 2016
(1860) Abraham Lincoln Defeats Stephen Douglas, John C. Breckinridge, John Bell: Constitutional Issues Surrounding Secessionism And “The Crisis of the House Divided” – James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, and the Steve Dancy Tales

Friday, April 1, 2016
(1860) Stephen Douglas’s Understanding of the Constitution – David Shestokas, Author, Constitutional Sound Bites; Host, Constitutionally Speaking

Saturday, April 2, 2016
(1860) John C. Breckinridge’s Understanding of the Constitution – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Monday, April 4, 2016
(1860) John Bell’s Understanding of the Constitution – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Tuesday, April 5, 2016
(1860) Abraham Lincoln’s Understanding of the Constitution, Part 1: Its Relation to the Declaration of Independence – J. Eric Wise, Partner, Gibson Dunn & Crutcher LLP in New York City

Wednesday, April 6, 2016
(1860) Abraham Lincoln’s Understanding of the Constitution, Part 2: The Importance of the Union – David Shestokas, Author, Constitutional Sound Bites; Host, Constitutionally Speaking

Thursday, April 7, 2016
(1864) Abraham Lincoln Defeats George McClellan: Constitutional Issues Raised by Lincoln’s Conduct of the War – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Friday, April 8, 2016
(1864) Holding a Presidential Election During a Civil War – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Monday, April 11, 2016
“Civil War Amendments” to the Constitution – James Legee, Program Director, The Freedoms Foundation at Valley Forge; Adjunct Professor, Albright College, PA

Tuesday, April 12, 2016
(1868) Ulysses S. Grant Defeats Horatio Seymour: Reconstruction and the Constitution – Forrest Nabors, University of Alaska at Anchorage Professor of Political Science

Wednesday, April 13, 2016
(1868) Constitutional Issues Surrounding Black Suffrage – Forrest Nabors, University of Alaska at Anchorage Professor of Political Science

Thursday, April 14, 2016
(1872) Ulysses S. Grant Defeats Horace Greeley: The Continuing Controversies Over Reconstruction – Forrest Nabors, University of Alaska at Anchorage Professor of Political Science

Friday, April 15, 2016
(1872) Civil Service Reform – Forrest Nabors, University of Alaska at Anchorage Professor of Political Science

Monday, April 18, 2016
(1876) Rutherford B. Hayes Defeats Samuel Tilden: The End of Reconstruction – Forrest Nabors, University of Alaska at Anchorage Professor of Political Science

Tuesday, April 19, 2016
(1876) Rutherford B. Hayes v. Samuel Tilden: Controversy Over Election Returns in This Election – Forrest Nabors, University of Alaska at Anchorage Professor of Political Science

Wednesday, April 20, 2016
(1880) James Garfield Defeats Winfield Scott Hancock: The Tariff Controversy, Post-Civil War – Kirk Higgins, Senior Manager of Education Bill of Rights Institute

 Thursday, April 21, 2016
(1884) Grover Cleveland Defeats James G. Blaine: The Issues Surrounding the Furor Stirred by the “Rum, Romanism, and Rebellion” Slogan, Regarding Religious Freedom and Anti-Catholic Prejudice – Peter Roff, Advisory Board Member, Constituting America; Contributing Editor, U.S. New and World Report

Friday, April 22, 2016
(1888) Benjamin Harrison Defeats Grover Cleveland: The Constitutional Issues Raised by Cleveland’s Veto of Pension Legislation for Veterans – Brion McClanahan, Author, The Founding Fathers Guide to the Constitution

Monday, April 25, 2016
Grover Cleveland: Twenty-second and Twenty-fourth President of the United States – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Tuesday, April 26, 2016
William McKinley: Twenty-fifth President of the United States  – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Wednesday, April 27, 2016
(1896) William McKinley Defeats William Jennings Bryan: The Gold Standard vs. Bimetallism – Karl Rove, Former Deputy Chief of Staff to President George W. Bush and author of The Triumph of William McKinley, Why the Election of 1896 Still Matters

Thursday, April 28, 2016
(1904) Theodore Roosevelt Defeats Alton Parker: Anti-Trust Legislation – Steven Aden, Senior Counsel, Alliance Defending Freedom

Friday, April 29, 2016
(1904, 1908) Theodore Roosevelt’s “Square Deal” vs. William Jennings Bryan’s Populism – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Monday, May 2, 2016
(1908) William Howard Taft Defeats William Jennings Bryan – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Tuesday, May 3, 2016
Progressivism and Its Theory of Constitutionalism – Matthew Spalding, Ph.D. – Associate Vice President and Dean of Educational Programs, The Allan P. Kirby, Jr. Center for Constitutional Studies & Citizenship, Hillsdale College 

Wednesday, May 4, 2016
(1912) Woodrow Wilson Defeats William Howard Taft, Theodore Roosevelt, Eugene Debs: Woodrow Wilson’s “New Freedom” – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Thursday, May 5, 2016
(1912) Theodore Roosevelt’s “New Nationalism” – William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; Author, Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism

Friday, May 6, 2016
(1912) Eugene Debs’ Socialism and the U. S. Constitution – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Monday, May 9, 2016
(1916) Woodrow Wilson Defeats Charles Evans Hughes – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Tuesday, May 10, 2016
Warren G. Harding: Twenty-Ninth President of the United States – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Wednesday, May 11, 2016
(1920) The Sedition Act and Eugene Debs: Raising of the issue of the “Red Scare” – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Thursday, May 12, 2016
(1924) Calvin Coolidge Defeats Robert M. LaFollette, Burton K. Wheeler (Progressive Party), and John W. Davis: The Direct Election of Presidents – Joe Postell, Professor of Political Science, University of Colorado at Colorado Springs, CO

Friday, May 13, 2016
Women’s Suffrage and the Impact on Presidential Elections – Rachel Sheffield, Policy Analyst, DeVos Center for Religion & Civil Society, The Heritage Foundation

Saturday, May 14, 2016
Herbert Hoover: Thirty-first President of the United States – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Monday, May 16, 2016
(1928) The Effects of Urbanization on the U. S. and Its Implications for Constitutional Government – Scot Faulkner, Former Chief Administrative Officer of the U.S. House of Representatives and as a Member of the Reagan White House Staff

Tuesday, May 17, 2016
(1932) Franklin D. Roosevelt Defeats Herbert Hoover: How the Great Depression Threatened Constitutionalism – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Wednesday, May 18, 2016
(1932) The “New Deal” – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Thursday, May 19, 2016
(1936) Franklin D. Roosevelt Defeats Alfred Landon: Administrative Centralization and Its Implications for Constitutionalism – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Friday, May 20, 2016
(1936) Supreme Court Opposition to New Deal Laws – Horace Cooper, Legal Commentator; Adjunct Fellow, National Center for Public Policy Research

Monday, May 23, 2016
(1940) Franklin D. Roosevelt’s Unprecedented Run for a Third Term – Andrew Bibby, Interim Director, Center for Constitutional Studies, Utah Valley University

Tuesday, May 24, 2016
(1944) Franklin D. Roosevelt Defeats Thomas Dewey: Constitutional Implications of Roosevelt’s Liberal Internationalism, United Nations – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Wednesday, May 25, 2016
(1948) Harry Truman Defeats Thomas Dewey, Strom Thurmond (“Dixiecrat”), Henry Wallace (Progressive Party): “States’ Rights” and Civil Rights Issues Raised by Dixiecrats – William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; Author, Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism

Thursday, May 26, 2016
(1948) Harry Truman: The Atomic Bomb, Cold War, Marshall Plan & The Fair Deal and Civil Rights Reform – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Friday, May 27, 2016
(1952) Dwight D. Eisenhower Defeats Adlai Stevenson: Communism and Civil Liberties – Horace Cooper, Legal Commentator; Adjunct Fellow, National Center for Public Policy Research

Monday, May 30, 2016
A Memorial Day Message – Janine Turner, Constituting America Founder & Co-Chair

Tuesday, May 31, 2016
(1956) Dwight D. Eisenhower Defeats Aldai Stevenson – Jim Legee, Program Director, The Freedoms Foundation at Valley Forge; Adjunct Professor, Albright College, PA

Wednesday, June 1, 2016
(1960) The Election of the First Catholic President as a Vindication of the First Amendment’s Clauses on Religious Freedom and Religion Establishment – Tony Williams – Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Thursday, June 2, 2016
(1964) Lyndon B. Johnson Defeats Barry Goldwater: The “Great Society” and the Constitution – Brion McClanahan, Author, The Founding Fathers Guide to the Constitution

Friday, June 3, 2016
(1968) Richard Nixon Defeats Hubert Humphrey, George C. Wallace: The Rise of the “New Left” – Steve Knott, Co-author with Bill of Rights Institute’s Tony Williams, Washington and Hamilton: The Alliance That Forged America

Saturday, June 4, 2016
(1968) Supreme Court Decisions on Civil Rights—an Issue Raised by George C. Wallace – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Monday, June 6, 2016
(1972) Richard Nixon: Thirty-Seventh President of the United States – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Tuesday, June 7, 2016
A Different Take on Watergate – John Marini, Senior Fellow, Claremont Institute, California; Fourth book in progress, American Constitutionalism and the Administrative State

Wednesday, June 8, 2016
(1972) Richard Nixon Defeats George McGovern: Watergate – David Kopel, Research Director at the Independence Institute, and Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law

Thursday, June 9, 2016
Our Constitution Works: President Ford’s Date With Destiny – Gerald R. Ford Presidential Foundation, Grand Rapids, Michigan

Friday, June 10, 2016
(1976) Jimmy Carter: Thirty-Ninth President of the United States – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Monday, June 13, 2016
(1980) Ronald Reagan Defeats Jimmy Carter, John Anderson: The Critique of the Administrative State – Andrew Langer, President, Institute for Liberty

Tuesday, June 14, 2016
(1984) Ronald Reagan Defeats Walter Mondale: Geraldine Ferraro Nomination as Vice President and the Constitutional Implications of the Feminist Movement – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Wednesday, June 15 – Thursday, June 16, 2016
(1988) George H.W. Bush Defeats Michael Dukakis – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Friday, June 17, 2016
(1992) Bill Clinton Defeats George H.W. Bush – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Monday, June 20, 2016
(1992) Bill Clinton Defeats George H.W. Bush – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Tuesday, June 21, 2016
(1992) Bill Clinton Defeats George H.W. Bush – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Wednesday, June 22, 2016
(1996) Bill Clinton, Presidential Elections, And Constitutional Rule Of Law – Brian Chilton, former University Of Virginia School Of Law Associate Editor & Executive Editor, Virginia Law Review; Author, Issachar’s Heirs

Thursday, June 23, 2016
(2000) George W. Bush Defeats Al Gore, Ralph Nader: A Case Study On Choosing Electors – The Honorable John N. Hostettler, former Congressman from Indiana; Director, The D. James Kennedy Center for Christian Statesmanship; Author of Ordained and Established: A Statesman-Citizen’s Guide to the United States Constitution

Friday, June 23, 2016
(2004) George W. Bush Defeats John Kerry: Terrorism and the Constitution – Andrew Langer – President, Institute for Liberty

Monday, June 27, 2016
(2008) Barack Obama: Forty-Fourth President of the United States – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Tuesday, June 28, 2016
(2012) Barack Obama Defeats Mitt Romney – Michael Barone, co-author of The Almanac of American Politics and Senior Political Analyst for the Washington Examiner; Resident Fellow, American Enterprise Institute

Wednesday, June 29, 2016
Conclusion: Constitutional Issues in the 2016 Election – William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; Author, Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism

 

If one were to look through the list of America’s past presidents, one would quickly conclude that many of the men who held our nation’s highest office would not have reached the Oval Office if they ran today. For example, James Madison’s soft voice and small stature would have branded him as too meek and complacent to serve, Andrew Jackson’s mistake of marrying a technically-still-married-woman would have been the subject of countless attack adds, Abraham Lincoln’s strange looks and history of deep depression would have deterred many voters, Theodore Roosevelt’s choice to leave his infant daughter behind while he wrangled the wild west would have been looked upon as unsound judgment, Warren Harding’s extramarital flings would have inevitably surfaced quickly in the primaries, Franklin Roosevelt’s fragile health would have caused his opponents to label him as unable to serve…and the list goes on and on.

So what changed? Read more

If you grow fruits and vegetables, the federal government might limit how many fruits and vegetables you can sell. Some raisin growers learned this the hard way when they were fined by the United States Department of Agriculture (USDA) for not turning over part of their crop to the federal government.

This year, the United States Supreme Court in Horne v. USDA decided this “raisin case,” holding that under the Fifth Amendment, the federal government was taking the raisins and therefore must provide just compensation to the raisin growers.

While an important victory for property rights, raisin growers may still be subject to USDA meddling into their sales. On a USDA web page, they acknowledge that the raisin supply restrictions will be amended in light of the Horne case. The agency could be trying to figure out a new way to restrict the sale of raisins.

It is shocking that a farmer can’t make an honest living selling a legal product without the federal government coming in and telling them how much they can sell. This is reality though. It’s also not just a raisin problem, but much broader. These supply restrictions are the result of what are known as marketing orders.

The Agricultural Marketing Agreement Act of 1937 authorizes the use of fruit and vegetable marketing orders. These New Deal programs attempt to create stable markets for certain commodities. Marketing orders, among other things, authorize research and promotion of commodities, establish minimum quality standards, and sometimes limit supply through volume controls (i.e. supply restrictions).

They are initiated by industry and must be approved by two-thirds of growers. The government acts as the enforcer for industry, requiring everyone affected by a specific order to abide by its legally enforceable provisions. In this way, industry members use government compulsion rather than private cooperation to maintain “order” in the marketplace. It doesn’t matter if a covered grower doesn’t support the marketing order or didn’t vote for it, they have to abide by its terms.

The USDA gives its blessing to these fruit and vegetable cartels, which would likely violate federal antitrust law absent government intervention. The industry leaders running these cartels are seeking to benefit the industry, and more likely specific members of the industry. The interests of consumers are of little to no concern.

Currently, there are 28 fruit and vegetable marketing orders. Of these, 10 have authorized supply restrictions. Only two have supply restrictions that are active (i.e. in effect): spearmint oil and tart cherries. This low number of active supply restrictions is evidence that they are unnecessary; 26 of 28 marketing orders don’t have active supply restrictions.

While supply restrictions may be the most egregious aspect of marketing orders, these orders in general are the problem. Nobody should be forced to be part of any association of individuals, including these cartels. These orders are egregious, plain and simple. Even two Supreme Court justices not necessarily known as free market champions captured the absurdity of marketing orders.

The first time the Horne case came to the Court (it came twice), Justice Elena Kagan quipped, “And now, the Ninth Circuit can go and try to figure out whether this marketing order is a taking or it’s just the world’s most outdated law.”

And Justice Sonia Sotomayor, who held that the government had not actually taken the raisins, noted in her dissent: “The Order may well be an outdated, and by some lights downright silly, regulation. It is also no doubt intrusive.”

These orders are outdated, silly, and intrusive. Worse though, they are completely counter to the idea of a free society where Americans have the unalienable rights of life, liberty, and the pursuit of happiness. The USDA may implement these orders, but it is Congress that gave the agency the green light to wield this incredible power. Only Congress can fix this situation.

Daren Bakst is the Research Fellow in Agricultural Policy at The Heritage Foundation. Bakst frequently submits comments to regulatory agencies and has appeared in or been quoted by a wide range of media outlets such as The Wall Street Journal, USA Today, The Washington Times, CNN, Fox Business News, Al-Jazeera America, and U.S. News and World Report. A licensed attorney, he holds a law degree from University of Miami and a master of laws degree from American University.

 

 

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

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.

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. Read more

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.

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.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within 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. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

 

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section. 3.

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.

Section. 3.

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, Read more

“It will be of little avail to the people that the laws are made by men

 of their own choice if the laws be so voluminous that they cannot be read, or so

 incoherent that they cannot be understood . . . .”

                                    —James Madison, Federalist 62

 

In support of the federal Constitution, James Madison explained that “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”1 Mr. Madison understood law “to be a rule of action,” and asked, “but how can that be a rule, which is little known, and less fixed?”2   Today, more than two centuries later, Mr. Madison’s warning has proven both prescient and forgotten.  With federal bills and statutes droning on for hundreds and thousands of inscrutable pages of legal jargon, federal legislation has grown so voluminous Read more

 

JulietteJuliette Turner

National Youth Director

Juliette has been able to learn from her mother’s power to prevail while sharing many of the same life interests. Juliette wrote the bestselling book Our Constitution Rocks!(HarpersCollins/Zondervan) at age 12. Our Constitution Rocks, currently in its second printing with over 50,000 copies sold, is endorsed by Former First Ladies Laura and Barbara Bush, President Clinton’s White House Counsel Jack Quinn, constitutional scholars, and many other political leaders of both parties. At age 16, Juliette Turner’s second book was published: Our Presidents Rock! (HarpersCollins/Zondervan) Our Presidents Rock brings American presidents to life for America’s future generation —using fun anecdotes and an engaging sense of humor to inspire young Americans to learn about leadership and history. Juliette’s new novel, That’s Not Hay In My Hair, will hit the shelves March 8, 2016 (Zondervan).

Juliette Turner is the National Youth Director of Constituting America, a group founded by her mother and co-chaired with Cathy Gillespie that is dedicated to educating Americans about the founding documents. Juliette reaches youth across America with her engaging books, motivational speeches, entertaining videos and media interviews. Juliette was the youngest author ever to speak at Mt. Vernon’s George Washington Symposium, and was recently one of four featured authors at the Dallas Celebration of Reading, along with Senator Kay Bailey Hutchison, Mark Shriver and ABC’s Byron Pitts.

As a dynamic duo, the Turners have been speaking to groups around the country, mixing pop culture and American history to engage apathetic citizens to get engaged. Beyond their dedication to the country, the Turners love spending time with each other; Juliette enjoys farming with Janine on the longhorn cattle ranch, helping Janine on the set of her recent films, co-recording an album with Janine, attending church with Janine, and working side-by-side on Janine’s radio show.


AustinDobbsAustin Dobbs

Austin Dobbs is a remarkable young man whose high school attributes, achieve ments and character mirror those of Turner Maurice Gauntt, Jr.’s. Dobbs was Valedictorian of his graduating class from Quitman High School in Quitman, Texas with a 5.4 grade point average. He was Captain of the football team and Captain of the track team. He received All-District Honors for his positions as wide receiver and defensive back and was named First Team Academic All-State as well as serving as Treasurer and Vice President of the Fellowship of Christian Athletes. Academically, in addition to being Valedictorian, he was President of the National Honor Society, President of the Debate Club, Student Council Vice-President and Senior Class President. He was a State Qualifying Debater for his junior and senior seasons, deemed as one of the top five debaters in the state of Texas and was the State Silver Gavel winner as 2nd in the State of Texas 2013. He received countless academic and character awards within his community. His church and community ser- vice is astonishing with 775 hours served, which includes Program Director of DASH – Drugs, Alcohol, Safety, and Health.

Dobbs is a freshman at Baylor University as a pre-law student pursuing political science as his major. After completion of his undergraduate degree, he anticipates joining what he believes to be one of the greatest branches of our military – the JAG program – because, in Austin Dobb’s words, “everything in this world must be earned and I am intrinsically inclined to repay the world for the countless opportunities with which I have been presented.” He lives by his mother’s motto “ To whom much is given, much is required”. Constituting America, Janine Turner (Gauntt) and the Gauntt Family are proud to present Austin Dobbs with this award in Turner Maurice Gauntt, Jr.’s name.

 


 

LaneyKrausTaddeo3Laney Kraus-Taddeo

Laney Kraus-Taddeo, 17, Best High School Short Film Winner, lives in Park Ridge, Illinois, and is currently a senior at Maine South High School. She has worked as a professional actress since the age of nine, appearing in both live theater productions and short films.  In high school she discovered a love of video and film production and has written, conceptualized, shot, directed and edited numerous short films, and has also directed live sports broadcasts and performing arts presentations. Proud to be this year’s short film winner, Laney is also an award-winning writer and editor with her high school newspaper, is the Boys Varsity Basketball video coordinator, and is active in her community. She will be attending college in the Fall of 2015 and plans on pursuing a double major in film production and theater.

 


Nic_Downs_Best_College_PSA_Winner

Nic Downs

Nic Downs, 20, is from Dana Point, California. He will begin his junior year this fall at Point Loma Nazarene University in Southern California. He loves writing, foreign languages, people, and cultures, and always searches for ways to learn more in these areas. Excelling in Italian and French, he has tutored at Saddleback College and has also worked privately, teaching Italian to missionaries bound for Italy. He has participated in mission trips to Spain, Africa, and the Caribbean, along with family expeditions throughout the world. Over the last few years, Nic has taken a keen interest in politics, and is especially passionate about the Constitution and the issues that threaten its existence. In addition, he recently attended the Christians United for Israel (CUFI) Summit in Washington, D.C.

 

 


JewelJewel Gilbert

Jewel Gilbert, 20, Best College Speech Winner, is from Easton, Pennsylvania and a Freshman at Muhlenberg College. He is extremely grateful to have had his speech chosen as the Winner of Constituting America. Jewel has three passions: To serve God, play football, and perform with Sing For America. Sing for America is a charitable group founded by the Gilbert family in 2005. Performing up to 80 performances a year, stretching from Memphis to Maine, they do it to show appreciation for the Military families sacrificing so much for us. In 2011, Sing For America evolved as an entity striving to bring light and truth to the community through the arts in many different ways. Sing For America Productions was born, and since has done 8 Broadway style musicals incorporating professional and amateur talent under the slogan “The Arts Are Color Blind.” Out of the 224 cast members involved with SFAP, half of them are minorities. Many of the actors had their very first experience on stage with us. Sing For America has been able to donate over $40,000 to help military families in need by paying rent, heating bills, food, whatever they may need. www.SingForAmerica.com.

 


 

LindsayCulpepperLindsay Culpepper

Lindsay Culpepper, 11, Best Poem Winner, lives in Maylene, AL, just south of Birmingham. She is a sixth grader at Evangel Classical Christian School, where she enjoys studying science, Latin, and history. In her free time, she likes reading, writing, art, horseback riding, and playing basketball. An animal lover, she has attended Zoo Camp at the Birmingham Zoo each summer for the past four years. She recently started serving in the children’s ministry at her church, assisting with the children’s worship service. In the future she hopes to become a writer, a nature photographer, or a veterinarian.

 


 

EvitaEvita Duffy

Coming Soon

 

 

 

 


 

MattMcneyMatthew McNey

Matthew McNey, 21, was born in Columbia, MD; however, he was raised in College Park, Burtonsville and Laurel.  As a product of the American Dream he was instilled with strong religious convictions, hard work and dedication. He was not born into a rich family; his was a family best characterized as middle class, a family battling with drug addiction and alcoholism. Matthew goes to school and works full time with plans to go to Harvard Law and Harvard Business School to earn a JD and MBA, and to become a corporate attorney. He has been involved in politics since he was 13. He joined the Democratic Party when he was 16, and eventually became the President of the Maryland Federation of College Democrats.

 


 

AmandaTesarekAmanda Tesarek

Amanda Tesarek, 19, Best College Short Film Winner, is from Superior, Wisconsin, and attends Columbia University in New York City. She is currently a sophomore, and plans to pursue a double major in biochemistry and political science and a minor in Arabic language. Her extracurricular activities have included student government, newspaper, and improvisational comedy. Amanda was especially inspired to enter this contest after attending the American Legion Auxiliary’s Girls State and Girls Nation programs, which taught her the importance of patriotism and appreciating those who serve in the armed forces.

 


 

AnyaAmbarish2Anya Ambarish

Anya Ambarish, 10, Best Elementary School Poem Winner, lives in Dulles, Virginia. She goes to Rosa Lee Carter Elementary school and is in the fifth grade. Her favorite subject at school is reading, and she also enjoys science and social studies. She is passionate about poetry, writing, reading, tennis, basketball and ping-pong. Many of her short stories and poems have been published in various books and websites. She aspires to become a lawyer or a writer.

 

 

 


MaryemBouatlaouiMaryem Bouatlaoui

Maryem Bouatlaoui, 10, Best Emblem Winner, is a resident of Philadelphia, Pennsylvania. She was born in Morocco. Maryem attends Henry W. Lawton Elementary School. She is involved in a lot of afterschool programs like The Choir Club, Patriots Club and Environmental Club. Maryem also enjoys drawing and hopes to become a doctor when she grows up.

 

 

 


 

Halley MoakHalley Moak

Halley is 12 years old, and enjoys history and horses.  She was a Best Poem winner in Constituting America’s inaugural year, and is an active member of Constituting America’s Colorado Patriot Club.  Halley lives in Estes Park, Colorado where she is involved with 4-H, swim team, her youth group “The Hub,” Rooftop Rodeo and the Estes Park Equestrian Club.  An avid rider, she owns two quarter horses.

 

 

 


 

IMG_0471Quinn Moss

Coming Soon
 

 

 

 

 

 


LukeKraynak

Luke Kraynak

Coming Soon
 

 

 

 

 

 


CourtneyCourtney Janecka

Coming Soon

The Flag:

Let’s start with the simplest symbol that every kid knows – the flag. The flag is the symbol of our nation. It’s what we identify with as Americans.  There’s great flag information and history at this site: http://www.usa-flag-site.org/history.shtml

Betsy Ross, a 24-year-old widow and upholsterer, is credited for sewing the first flag in May 1776 although there is no historical record of this – more of a legend.

clip_image002

Here are some of the questions inspired by the old INS Citizenship Test to ask the club members – try to get them to answer without looking at a flag, if possible:

1)     What colors are on our flag? (Answer: Red, White and Blue. Red for Hardiness and Valor, White for Purity and Innocence, Blue for Vigilance, Perseverance and Justice, according to http://www.usa-flag-site.org/history.shtml – If you need a dictionary for these words, grab one for the group or check out www.dictionary.com)  

2)     How many stars are on the flag? (Answer: 50)

3)     What color are the stars? (Answer: white – The white on blue was to represent a New Constellation in our skies, The United States)

4)     What do those stars represent? (Answer: the states – one for each)

5)     How many stripes are on the flag? (Answer: 13 )

6)     What are the colors of the stripes? (Answer: Red and White – 7 red alternating with 6 white)

7)     What do the stripes represent? (Answer: the 13 original colonies or states)

8)     Try to name the 13 colonies: (Answer: New Hampshire, Massachusetts, Rhodes Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia)

9)     What day is Flag Day? (Answer: June 14th)

10)  What are some of the things you NEVER do with a flag? (Answers: don’t let it touch the ground, let it get rained or snowed upon (unless made for that), left in the dark (always light it at night), used for decoration, used on clothing or advertising materials, flown upside down unless specifically as a sign of distress, used to carry things)

11)  What’s the name of the national anthem? (Answer: The Star-Spangled Banner, by Francis Scott Key in 1814) Here are the words: http://www.usa-flag-site.org/song-lyrics/star-spangled-banner.shtml – the group leader can print these or just read them and the group can talk about what it means. Here’s a video from David Barton’s Wallbuilders about the Star-Spangled Banner: http://www.youtube.com/watch?v=zDKfw8nysLA (7:45 – can watch together)

As a group, they can either draw their own flag, design a flag for themselves, their family or their class/team. Alternatively, it would be nice to talk about the state flag of where they live as well. Here’s a resource for that:  http://www.50states.com/flag/

At the end, the moderator can randomly ask some of the questions again and see if the kids remember. You can also print these pages for them for their patriot notebook to have as reference.

___________________________________________________

Vocabulary Lessons for the Constitution’s Article I (Legislative Power)

 

Take a few minutes and divide up these words with the group – maybe write them on pieces of paper and let everyone draw from a basket or jar enough so the slips of paper are divided semi-evenly.

Read the list so everyone understands how to pronounce their word(s).

Everyone will need a dictionary or their phone with an app on it to look up the meanings. Give everyone 10-15 minutes to find these words and make up their sentences. One definition for each is probably sufficient.

Besides the meaning, encourage everyone to try and use these in a sentence that actually makes sense. Have the group decide if they think the sentence helps understand the word better. Maybe have the participants trade their definitions with a partner and each read the other’s to see if they make sense.

Offer a prize or reward for the funniest sentence, the most descriptive, the most creative.

Legislation

Apportioned

Enumeration

Executive

Impeach

Adjourn

Compel

Treason

Duties

Imports

Excises

Naturalization

Tribunals

Letters of marquee

Writ of Habeau Corpus

Bill of Attainder

Ex poste facto law

Emolument

****************************************************

Group Leader’s Answer Key & Sentences – definitions per www.dictionary.com:

Legislation – 1. the act of making or enacting laws. 2. a law or a body of laws enacted.

  • Sample Sentence: The legislation written in last year’s session was 1,300 pages long.

Apportioned – to distribute or allocate proportionally; divide and assign according to some rule of proportional distribution: to apportion expenses among the three men.

  • Sample Sentence: The diners apportioned their final bill so that everyone paid $15 for dinner.

Enumeration –  1. ( tr ) to mention separately or in order; name one by one; list 2. ( tr ) to determine the number of; count

  • Sample Sentence: The articles of the Constitution have the enumeration of 1-7.

Executive – 1. a person or group of persons having administrative or supervisory authority in an organization. 2. the person or persons in whom the supreme executive power of a government is vested. 3. the executive branch of a government.

  • Sample Sentence: The executive branch of our government includes the president.

Impeach – 1. to accuse (a public official) before an appropriate tribunal of misconduct in office. 2. Chiefly Law . to challenge the credibility of: to impeach a witness. 3. to bring an accusation against. 4. to call in question; cast an imputation upon: to impeach a person’s motives. 5. to call to account.

  • Sample Sentence: Congress can impeach the president if they believe he has committed a crime while in office.

Adjourn – 1. to suspend the meeting of (a club, legislature, committee, etc.) to a future time, another place, or indefinitely: to adjourn the court. 2. to defer or postpone to a later time: They adjourned the meeting until the following Monday. 3. to defer or postpone (a matter) to a future meeting of the same body. 4. to defer or postpone (a matter) to some future time, either specified or not specified.

  • Sample Sentence: Congress is scheduled to adjourn on Friday but may run a few days late.

Compel – 1. to force or drive, especially to a course of action: His disregard of the rules compels us to dismiss him. 2. to secure or bring about by force. 3. to force to submit; subdue. 4. to overpower. 5. Archaic . to drive together; unite by force; herd.

  • Sample Sentence:  Healthy debate is meant to compel others to consider a certain opinion or ideas.

Treason – 1. the offense of acting to overthrow one’s government or to harm or kill its sovereign. 2. a violation of allegiance to one’s sovereign or to one’s state. 3. the betrayal of a trust or confidence; breach of faith; treachery.

  • Sample Sentence: It is considered treason to betray state secrets to our enemy and can be punishable by death.

Duties – 1. something that one is expected or required to do by moral or legal obligation. 2. the binding or obligatory force of something that is morally or legally right; moral or legal obligation. 3. an action or task required by a person’s position or occupation; function: the duties of a clergyman. 4. the respectful and obedient conduct due a parent, superior, elder, etc. 5. an act or expression of respect.

  • Sample Sentence: The duties of being a student include doing your homework, studying for tests and behaving while in class.

Imports – 1. to bring in (merchandise, commodities, workers, etc.) from a foreign country for use, sale, processing, reexport, or services. 2. to bring or introduce from one use, connection, or relation into another: foreign bodies imported into the blood; foodstuffs imported from the farm.

  • Sample Sentence: The United States imports a lot of things from China to sell to Americans.

Excises – 1. an internal tax or duty on certain commodities, as liquor or tobacco, levied on their manufacture, sale, or consumption within the country. 2. a tax levied for a license to carry on certain employments, pursue certain sports, etc.

  • Sample Sentence: Excise taxes are levied on “sin” products like tobacco and liquor.

Naturalization – 1. to confer upon (an alien) the rights and privileges of a citizen. 2. to introduce (organisms) into a region and cause them to flourish as if native. 3. to introduce or adopt (foreign practices, words, etc.) into a country or into general use: to naturalize a French phrase.

  • Sample Sentence: Candidates for naturalization currently swear an oath of allegiance to the state.

Tribunals – 1. a court of justice. 2. a place or seat of judgment.

  • Sample Sentence: “It has come to this, that the friends of liberty, the friends of the slave, have shuddered when they have understood that his fate was left to the legal tribunals of the country to be decided. Free men have no faith that justice will be awarded in such a case.” Henry David Thoreau

Letters of marque – license or commission granted by a state to a private citizen to capture and confiscate the merchant ships of another nation. This appears in Article 1, Section 8, Clause 11 about the powers the Legislature will have.

  • Sample Sentence – During World War II, Washington issued a letter of marque enabling the civilian-operated airship Resolute to patrol for submarines.

Writ of habeas corpus – a writ requiring a person to be brought before a judge or court, especially for investigation of a restraint of the person’s liberty, used as a protection against illegal imprisonment. Literally – “Have the body”

  • The writ of habeas corpus demands a person be brought before the court to see that he exists and that his charges are real.

Bill of attainder – an act of legislature finding a person guilty of treason or felony without trial. Here’s a good legal definition: http://www.techlawjournal.com/glossary/legal/attainder.htm – Article I Section 9 paragraph 3 outlaws this. It’s basically trial by legislature instead of by the judicial branch.

  • Sample Sentence: The legislature is not allowed to try a person through a bill of attainder per the Constitution.

Ex poste facto law – Laws that provide for the infliction of punishment upon a person for some prior act that, at the time it was committed, was not illegal. Also specifically outlawed in Article I, Section 9 paragraph 3 of the Constitution. Another good explanation: http://legal-dictionary.thefreedictionary.com/Ex+Post+Facto+Laws – This and the bills of attainder were meant to protect people from abuses of power and give them the power of due process of the law.

  • Sample Sentence: The couple would have been tried by ex poste facto laws for damaging the wetlands since the land was not designated as a wetland when they improved it.

Emolument – profit, salary, or fees from office or employment; compensation for services. Found in Article 1, Section 6, Clause 2 (Ineligibility clause) regarding the House members can’t also serve in the Senate at the same time.

  • Sample Sentence: Tips are an emolument in addition to wages.

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Mnemonic for Remembering the Articles of the Constitution

A mnemonic is a phrase to help you remember the order of things or a simple list of things. Example: HOMES is the mnemonic for the Great Lakes – Huron, Ontario, Michigan, Erie and Superior. Another one: My Very Educated Mother Just Served Us Nine Pickles (the order of the planets before Pluto got deomoted – Mercury, Venus, Earth, Mars, Jupiter, Saturn, Uranus, Neptune, Pluto.)

So, let’s make up our own mnemonic for remembering the Articles of the Constitution (different from the Bill of Rights, of course). Here they are:

Article I Legislative Power
Article II Executive Power
Article III Judicial Power
Article IV States’ Power
Article V Amending the Constitution
Article VI Supremacy of Federal Power
Article VII Ratification Power

So the letters to use are L, E, J, S, A, S and R.

A book by Douglas M Rife and Gina Capaldi called “The Constitution A Comprehensive Guide to Understanding the Constitution and Its Impact on the United States of America,” suggested Loud Elves Jingle Sleigh bells And Shout Raucously.

Can you think of one? How about “Leah, Elizabeth and Jessica Sat Around Singing Rock and roll”

As a group, take about 10 minutes and let everyone play around with some sentences then take turns reading them outloud.

Maybe award a prize or a certificate for the one that the group thinks is the funniest, easiest to remember, most creative, etc.

Have fun! What else can you think of mnemonics for? Bill of Rights? The Founding Fathers? Get creative.

Spring Colonial Activities for Patriot Clubs or the Classroom:

 

                                   April Showers Bring May Flowers

 

Mount Vernon, home of George Washington, Montpelier, home of James Madison, and Monticello, home of Thomas Jefferson all boasted beautiful gardens.  This is a perfect season to expose students to colonial life, and activities colonial children participated in during springtime.

 

If you Google the above homes you can view pictures of the gardens currently restored.  It would be helpful to show these gardens to the students and discuss them before beginning the following activities.

 

The following activities can also be done in connection with Mother’s Day, and made for the children to present to their mothers.

 

Pressed Flower Place Mats:

 

Materials:

 

Spring flowers

Thick books such as Dictionaries

Tissue paper

Poster board

Clear contact paper

Markers or paint

Scissors

 

Procedure:

 

1.    Place flowers between two pieces of tissue paper

2.    Put tissue in between pages of book and stack more books on top

3.    Keep flowers in book for two weeks

4.    Cut poster board to place mat size (16X12 inches)

5.    Draw or paint pictures on poster board (suggestions might include pictures of the above Presidential estates)

6.    After two weeks take flowers from books

7.    Arrange flowers on the poster board in an attractive manner

8.    Cut pieces of contact paper in sizes of 17X 13 inches

9.    Working with a partner Roll the contact board over the arranged flowers on the poster board

10.Trim the edges of the contact paper, leaving enough to create a seal on both sides

 

 

Flower Vase:

 

Materials:

 

Glass juice or Mayo Jar (tall enough to place flowers standing within)

Paper Mache Paste: 1 part flour to 5 parts water, boiled for 3 min. and allowed to cool

Strips of white paper

Paint or markers

 

Procedure:

 

Paper Mache jar, covering with three layers of white paper that has paste coating the strips

Allow to dry for 24 hours

Decorate jar with colonial designs or flowers

 

 

Dandelion or Wildflower Necklaces:

 

Procedure:

 

Pick Wildflowers or Dandelions if available

Pick ones with long, thick stems

Attach them by tying one stem in a knot high up near the flower of another Dandelion or Wildflower, and so on until student reaches desired length

 

Remind students that these are going to wilt in a couple of days, but can be replaced as long as the flowers are available.

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Suggested Patriot Activities for March

 

“Look Up to the Bill of Rights!”

 

 

On March 4, 1789 the Senate convened for the very first time.  This is a perfect time to study the Bill of Rights.  An activity that will enhance this study is to make mobiles to hang, emphasizing the Bill of Rights.  If you Google: Bill of Rights for Kids, you can obtain that Bill, written in “Kid Friendly” Language.

 

Materials needed:

 

Plastic coat hangers of red, white, and blue

Yarn of the same colors

Print out pictures to color of the Bill of Rights

http://www.apples4theteacher.com/coloring-pages/constitution-day

Crayons and/or markers

Scissors

Hole punch

 

Procedure:  Have students color and cut out pictures which pertain to the Bill of Rights.  Punch holes in the tops of the pictures.  Cut yarn the desired length to suspend from the coat hangers.  Tie the yarn to the coat hangers in different places, and then attach the pictures to the suspended yarn by tying them on with yarn through the holes.  Hang these mobiles from plastic hooks placed in the ceiling, or from light fixtures, etc.  They make colorful decorations, and serve as reminders to the children of the Bill of Rights.

 

 

“Go Fly a Kite, Ben Franklin!”

 

As spring weather, and March winds approach, kite flying time is here.  A really fun activity for a Patriot Club would be to make homemade kites, after reading one of the following books about Ben Franklin.

 

1.    Ben Franklin and His First Kite  by Stephen Krensky

2.    How Ben Franklin Stole the Lightning by Rosalyn Schanzer

 

Materials Needed:

 

6 plastic straws

6 plastic jumbo straws

Scissors

Glue

Tissue paper

Cellophane tape

Kite string or other strong, lightweight String

Markers

 

Procedure:

Cut each flexible straw about 1 & ½ inches on each side of the flexible hinge

 

Slide one end of each jumbo straw into an end of each flexible hinged piece.  Form a hexagon with the remaining straws.

 

Cut a sheet of tissue paper into a size and shape slightly larger than the straw hexagon.  Allow an additional ½ to 1 inch of extra space on all sides.

 

Place the 6 sided figure on the tissue paper.

 

Run a bead of glue along one of the straws.

 

Bring the tissue paper up over the straw and glue it into place.  Repeat this with each straw.

 

Tear a 3 to 4 inch piece of cellophane tape.  Tape around the tissue and straw at the center of one of the 6 sides.  Repeat with each of the other sides.

 

Using scissors, carefully poke a hole through the tape and paper just inside the kite area on each of the 6 sides.

 

Cut three pieces of kite string about 18 e=inches long.

 

Thread each end of the three strings through opposite holes.  Carefully tie each string in place.

 

Pull the strings together at the center of the kite.  Tie these short strings to the remaining ball of string.

 

Decorate the kite with markers.

 

 Fly your kite, Ben Franklin!

 

*For further kite information, Google the following site:

 

www.suite101.com/how-to-make-a-kite for children-a104454?template=article_prin…

 

* ( Instructions by: Theresa Bledsoe)

“The Patriots are coming!  The Patriots are coming!”

The Light of Liberty shines brightly in the eyes of America’s youth, and Constituting America is encouraging students and teachers to become founding patriots in their school, by forming Patriot Clubs.  These clubs will provide opportunities for students to explore the Constitution of the United States in exciting ways, and to participate in a variety of both fun and educational activities that will help empower them as our future leaders, with the understanding of our country’s foundation.  Through the use of modern technology, and teacher ingenuity, students can take adventures through the history of our birth as a nation, and the relevance the Constitution still holds for us today.  Our website will offer suggestions for both students and teachers on club activities, so stay tuned to Constituting America to learn how you can spread the word that, “The Patriots are coming!”

Nancy K. Arnold, Schools Cabinet Secretary for the Patriot Club Project

 

Patriot Club News!

August 2016

By Gayle Poole, Texas

Patriot Club Leader & Winner, Best Short Film by an Adult, 2013

We had our fourth Patriot Club and had lots of fun learning more about our wonderful Constitution!

While we waited for everyone to arrive, the kids had fun jumping on hay bales that had examples of how to be a good citizen!

hay-bales2-citizenship-GaylePoole hay-bales1-citizenship-GaylePoole


September 2015

By Gayle Poole, Texas

Patriot Club Leader & Winner, Best Short Film by an Adult, 2013

Our first Patriot club went great!

I was a little nervous planning it, but when the kids arrived, fun happened!  We had five stations, with ten minutes at each one:

1: A Bill of Rights Stack race – two teams raced to make a pyramid of our freedoms from the Bill of Rights, written on each cup)

  • They had to say them out loud as they placed them.
  • It was a relay, so each child on the team had a turn.
  • If the cups fell, they had to start over.

GaylePoolePatriotClub9.2015-1c

 


 

2: Bells – they played the song “America” on a child’s set of hand bells. I had the music color coded, so they could play it on the spot.  All ages enjoyed this.

GaylePoolePatriotClub9.2015-3

 


 

3: Meet Ben Franklin – they learned some great things about the oldest Founding Father.

GaylePoolePatriotClub9.2015-7

GaylePoolePatriotClub9.2015-6

 


4: George Washington puzzle – I cut a free printable color page of George Washington’s face then separated it into five segments.

  • I typed a fact on each piece, (he refused to be king, he once returned a dog to the enemy, etc)
  • I copied a sheet for each child, on different colored paper.
  • The kids took turns rolling two dice. If they got a double 1 through 5, they took a slice of their puzzle, trying to complete his face.
  • If they threw a double six, they had to return all their pieces to their stack and start over.

GaylePoolePatriotClub9.2015-5

GaylePoolePatriotClub9.2015-4

 


 

5: Know their names – we played memory with the names of the Founding Fathers.

  • On just a few of the not so well known men, I added a fact (ex:  Roger Sherman – only American to sign all 4)
  • I would occasionally mention that fact as they turned over their cards.

GaylePoolePatriotClub9.2015-2

 

We then had a potluck picnic and a hay ride.  As an end to the night, we had a review candy toss with questions from all of our stations.

All of my parents were eager to man a station or help in any way and the kids were happy playing the games.

I had invited about twenty five kids, but fifteen were able to come.  I will double the invitations next time.  It was a great night and a thrill to see the kids have fun learning!

The ideas just keep coming for future Patriot Clubs!  It was way easier than I thought to get started.

Gayle Poole, Texas

Patriot Club Leader & Winner, Best Short Film by an Adult, 2013

 


 

The United States Constitution

Branches of Govt.

 

Article 1 Section 2

tree

Congress

House of Representatives

-Age 25 years old

-7 years a citizen of the USA

-# of Representatives is based on population (Census) of each State. [ Originally based on the number (#) of FREE PERSONS. Excluding Native Americans, not taxed and 3/5ths of all other persons.

-1st Census was 1787 +3 = 1790 and then every 10 years after that.

-# of Representative per State = 1 per 30,000 persons with a minimum of 1 per State.

In 1787 (prior to 1790)

New Hampshire = 3

Rhode Island/Providence Plantation = 1

Massachuettes = 8

Connecticut = 5

New York = 6

New Jersey = 4

Pennsylvania = 8

Delaware = 1

Maryland = 6

Virginia = 10

North Carolina = 5

South Carolina = 5

Georgia = 3

Article 1 Section 3

 

Senate

-2 Senators per State

-6 years

-Originally Senators were selected by the State Legislature (changed in the 17th Amendment*)

– Age 35

– 9 years a citizen of the USA

The US Vice President is PRESIDENT of the Senate but he/she has no voting power for Bills (unless the political parties are equally divided)

*Amendment 17 ratified on 4/8/1913 changed this part:

-2 Senators per State ELECTED by the PEOPLE

-still 6 year terms

-Each Senator has 1 vote

Senators serve 6 years, but every 2 years 1/3 of the Senate is up for Re-election.

What do they do?

Power to Impeach

Impeach means Impeachment in the United States is an expressed power of the legislature that allows for formal charges against a civil officer of government for crimes committed in office. The actual trial on those charges, and subsequent removal of an official on conviction on those charges, is separate from the act of impeachment itself.

At the Philadelphia Convention, Benjamin Franklin noted that, historically, the removal of “obnoxious” chief executives had been accomplished by assassination. Franklin suggested that a proceduralized mechanism for removal — impeachment — would be preferable.[1]

Guest Essayist: The Honorable John Boehner, 53rd Speaker Of The U.S. House Of Representatives

On September 17, Americans will observe the 228th anniversary of the adoption and signing of the U.S. Constitution by the Constitutional Convention.  I commend Janine Turner, Cathy Gillespie and everyone associated with Constituting America for their efforts to defend our Constitution and educate people about its foundational significance.  Also, I am humbled to accept their gracious invitation to participate as an essayist in this year’s 90 Day Study on executive overreach.

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Guest Essayist: Will Morrisey

Contributors to this series of articles have shown that executive branch of the United States government, cheered on by Congress and the Supreme Court and abetted by what has become a fourth branch of government—the federal bureaucracy or administrative state—has for some time almost routinely overridden the separation of powers the Framers designed for the protection of American rights.  In The Federalist, Publius had argued that the Constitution itself amounts to a bill of rights, preventing the usurpation of powers by the executive by giving the legislative and judicial branches powerful incentives to resist such encroachment.

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Guest Essayist: David Eastman

Previous essays in this series explored why the Constitution is ineffective at restraining federal officials today, and illustrated how members of the present generation must come to view their relationship to the Constitution if it is to be of service in effectively limiting federal overreach. This series now concludes by highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints today; issue-based legislative accountability, and the calling of a convention of states to amend the United States Constitution.

A Convention for Our Time

When we survey the Constitution today, it is increasingly difficult to picture it as the splendid banner raised by Washington and his fellow delegates at the Constitutional Convention of 1787. Nor does it today call to mind the iron chains described by Thomas Jefferson when he spoke of binding men down from mischief “by the chains of the Constitution.” Instead, the Constitution hangs frayed and tattered today, a silent witness to more than two centuries of flying above our nation’s capital. Its form has changed very little since 1787, but much of the life has gone out of it. Some today have begun to ask if it isn’t time for another convention—and in no state is this idea greeted with greater enthusiasm than here in Alaska. Holding a convention would open the door to a whole series of amendments, which could add new thread to a tattered banner, and in so doing breathe new life into the Constitution. Even so, when the idea of a second convention first began to gain traction in 1788, James Madison argued that the timing of any future conventions should be chosen only with great care. Whether the timing is right for another convention is an important question, and one to which any serious student of the Constitution should give careful consideration.

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In our constitutional republic, the Congress of the United States is the legitimate legislative branch of government, charged with making the laws. A decision to adopt any national global warming program is an enormous one, with hundreds of billions of dollars and personal liberties at stake. This is simply not something that ought to be done through the back door via an unelected, unaccountable agency.

As with all executive power grabs, the EPA ultimately can only do what Congress allows. Voters must constantly remind their elected representatives that they expect them not only to oppose bad laws but to step in and stop the executive branch when it oversteps its bounds.

Read more

Previous essays in this series explored why the Constitution is ineffective at restraining federal officials today, and illustrated how members of the present generation must come to view their relationship to the Constitution if it is to be of service in effectively limiting federal overreach. The most recent essay highlighted current efforts to amend the Constitution through an Article V convention. The series now concludes with another largely untried weapon in the citizen’s arsenal today; issue-based legislative accountability.

A Deaf Congress

In 2014, researchers at Princeton University released the results of an exhaustive study that analyzed more than twenty years of federal policy. The study evaluated various actors and the effect that they had on public policy. After examining literally thousands of laws and how those laws came to be made, they were forced to admit that ‘the number of American voters for or against an idea has literally no impact on the likelihood that Congress will make it law.’ Specifically, they concluded that “the preferences of the average American appear to have only a miniscule, near zero, statistically non-significant impact upon public policy.” There are many reasons for this, not the least of which is that the level of political sincerity possessed by the average American today is miniscule, near zero, statistically insignificant.

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In America, as our founders intended, the states are where the rubber meets the road.

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In “Federalist 51,” James Madison wrote, “In a free government the security for civil rights must be the same as that for religious rights.” He went on to explain that for religious rights to be secure, pluralism is needed. Religious rights, he explained, “consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects…” Put simply, greater religious diversity equals greater religious liberty.

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VIEW FROM COPENHAGEN

The full scope of what Obama, Browner,  and the EPA intend to do without any congressional authorization was on display at the United Nations climate conference I attended in Copenhagen in December 2009.

At a side event hosted by Greenpeace called “Yes, he can! How Obama can deliver stronger emissions reductions,” the Center for Biological Diversity presented a paper titled : “Yes, He Can: President Obama’s Power to Make an International Climate Commitment Without Waiting for Congress.”45 The center laid out a frightening blueprint for precisely how the president could negotiate and enforce an agreement with just a simple majority of Congress instead of the 67 Senate votes our founding fathers required for treaty ratification, or, if he so chooses, he can instead bypass Congress and the Constitution entirely and simply rely on EPA action under the Clean Air Act for enforcement. If the administration is allowed to get away with this reprehensible tactic, it would set an ominous precedent for international promises and bypassing Congress to enforce them in other policy areas.

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THE CZAR BEHIND THE CURTAIN

Driving the implementation of the EPA’s massive power grabs and circumvention of the legislative branch was a key White House official who avoided Senate confirmation by being installed as White House Energy Czar: Carol Browner.

The potential Senate confirmation fight Obama sidestepped by creating a czar position for Browner would have likely centered on her membership on the board of the Socialist International Commission for a Sustainable World Society.24 Browner was listed as one of 14 members of the commission on its website as recently as January S , 2009-the day she was named Obama’s White House energy czar.25 This commission pursues an openly socialist agenda of centralized control under a regime of global governance that would enforce extreme environmental political correctness globally. The commission’s views on global warming are, to say the least, extreme. Commission statements from the time Browner served include:

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THE TRAIN WRECK: THE EPA’S MANY WAYS TO ‘SKIN THE CAT’

Two weeks after the 2010 election and Obama’s “skin the cat” comment, a leading D.C.-based, left-wing advocacy group, the Center for American Progress,  published a 53-page report called The Power of the President: Recommendations to Advance Progressive Change, detailing a sweeping far-left agenda that flies directly in the face of what voters made clear they wanted. 16 The report was coauthored by the president of the Center for American Progress, John Podesta, who was the chairman of Obama’s transition team, and who has direct influence over the president and his key advisers.

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Using a phrase attributed to Benjamin Franklin, “…In this world nothing can be said to be certain except death and taxes.”  I would submit that in modern times, nothing is certain except death, taxes, and bureaucratic overreach.

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This essay continues a series exploring briefly why the Constitution is ineffective at restraining federal officials today, and illustrates how members of the present generation must come to view their relationship to the Constitution if it is to be of service in effectively responding to federal overreach. The series will conclude by highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints; issue-based legislative accountability, and a convention of states to amend the US Constitution.

The Constitution in the 21st Century

The two hundred and forty years of our independence as a nation are replete with examples of times that our constitutional forms were temporarily set aside, and sometimes by our nation’s most revered statesmen. The claim of public necessity was used sparingly at first, but it is now made by presidents with an alarming frequency, and in recent years simply on the grounds that Congress has been slow to act. While the nation was once strict in drawing distinctions between matters of truly dire emergencies and matters of mere presidential impatience, it is claimed by some today that the American people have adopted a much more permissive posture and no longer have need of a Constitution whose primary role is simply to serve as an impediment to progress and “the political will of the people”. The nature of the Constitution as a political document is now readily admitted. What is now more likely to be questioned is whether it is—and should remain—a legal document as well. As Washington forewarned us, we have now reached that point where change by usurpation has become the custom of the land.[1]

Read more

This essay continues a series exploring briefly why the Constitution is ineffective at restraining federal officials today, and illustrates how members of the present generation must come to view their relationship to the Constitution if it is to be of service in effectively responding to federal overreach. The series will conclude by highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints; issue-based legislative accountability, and a convention of states to amend the US Constitution.

The Constitution and the Permissive Public

In the Federalist Papers, Alexander Hamilton made the rather unremarkable observation that “…nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society.”[1] For an example, he drew from antiquity the case of Sparta’s highly decorated admiral, Lysander, in the Peloponnesian War. Term limits in Sparta required that Lysander resign as admiral at the end of his one year term of office and that no person could hold the office of admiral a second time. Yet when Sparta suffered a naval defeat, Lysander was soon called upon to lead the Spartan Navy once more in battle. Hamilton noted “how unequal parchment provisions are to a struggle with public necessity.” To paraphrase; it isn’t a fair fight. When constitutional limitations are paired against public necessity in the boxing ring, it’s like trying to take on an opponent whose weight class is three classes higher than yours. Sure, you may get a few punches in. You may even secure a few concessions from your opponent in the process. But in the end, constitutional limitations will inevitably succumb to perceptions of public necessity.

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REWRITING THE CLEAN AIR ACT OF 1970: A BACK DOOR TO SOARING ENERGY PRICES

Just to show you how unfazed  the Obama administration was by the political defeat of cap-and-trade, consider what’s on page 146 of Obama’s 2012 budget: ‘The administration continues to support greenhouse gas emissions reductions in the United States in the range of 17 percent below 2005 levels by 2020 and 83 percent by 2050 .”10 Those just happen to be the same levels required by the failed Waxman­ Markey cap-and-trade bill . Obama is telling the EPA to just pretend the bill passed and regulate away. In fact, Obama’.s EPA was already moving full-steam ahead to implement a global warming regulatory scheme that could be even more costly than cap-and-trade-without the approval of the American people and without so much as a vote in Congress. On December 7, 2009-right in the middle of the media firestorm over the Climategate scan­dal, which leaked e-mails from leading global warming alarmists that called some of the basic science into question-the EPA issued a so­ called “endangerment finding” for greenhouse gases, paving the way for onerous greenhouse gas regulations to be shoehorned into the 1970 Clean Air Act, despite the fact that Congress had considered­ and decisively rejected-adding such regulations in 1990, when the Clean Air Act was amended .11 It is such an ill-fitting vehicle to ad­ dress greenhouse gases that in order for this strategy to succeed, the EPA must, illegally, rewrite the law to suit its purposes.

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Small businesses that reimburse employees for the cost of premiums for individual health insurance policies or pay their health costs directly will be fined up to $36,500 a year per employee under a new Internal Revenue Service regulation that takes effect July 1, 2015 (article originally published June 30, 2015).

Read more

This essay continues a series exploring briefly why the Constitution is ineffective at restraining federal officials today, and illustrates how members of the present generation must come to view their relationship to the Constitution if it is to be of service in effectively responding to federal overreach. The series will conclude by highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints; issue-based legislative accountability, and a convention of states to amend the US Constitution.

Continuous Physical Reconnaissance

One of the lessons drilled into cadets at West Point, until it begins to find its way into their dreams at night, is the absolutely vital requirement to observe friendly obstacles on the battlefield. Army doctrine on this is as straightforward as it is inflexible: “Continuous physical reconnaissance of protective obstacles is extremely critical. Units must keep protective obstacles under continuous observation at all times” (Army Field Manual 90-7).

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For decades, environmental extremists have been stymied when their doomsaying predictions collide with the reality of an ever-improving environment, driven by the enormous wealth created by our market economy. The “problem” they describe is always something different, but the “solution” is always the same: draconian restrictions on economic activity, vastly expanded government power (usually internationally), and greatly diminished individual freedom.

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This essay continues a series exploring briefly why the Constitution is ineffective at constraining federal officials today, and highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints, both of which claim support from the Constitution and America’s Founding Fathers.

The Constitution in Tatters

As a document setting effective limits on the power of the federal government, the Constitution today lies tattered and worn, each article a testament to a battle lost and a fortification overrun (or bypassed) on the way to the consolidation of power in Washington. Some beginning students of the Constitution today are perplexed and genuinely wonder how it could be that a document that reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” can today have nearly the same effect as if the Framers had instead decided “the powers not delegated to the States by the Constitution will be reserved to the federal government.” Beginning students are particularly prone to reason that if it is simply written in the Constitution, and the Constitution is the supreme law of the land, it must be so, and that’s all there is to it.

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This essay is the first in a series inspired by federal overreach in Alaska. The series explores briefly why the Constitution is ineffective at constraining federal officials today, and evaluates two largely untried and fundamentally different approaches to restoring constitutional constraints; issue based legislative accountability and a convention of states to amend the United States Constitution, both of which claim support from the Constitution and America’s Founding Fathers.

At the outset of the Constitutional Convention, George Washington rose and declared to each of his fellow delegates “If, to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and the honest can repair. The event is in the hand of God.”[1]

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Earlier this month, a new front was opened in the legal campaign by investors against the federal government’s (mis)management of mortgage giants Fannie Mae and Freddie Mac. In the latest salvo, Saxton v. Federal Housing Finance Authority (FHFA), individual investors from Iowa filed suit to stop the government from syphoning private property into the U.S. Treasury’s coffers. This most recent litigation effort seeks to reign in the federal government as it subverts the rule of law.

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Properly used, executive orders form an indispensable part of any government, including our own. If Congress passes a law and the president signs it, the president undertakes a Constitutional obligation to execute the law.  In so doing, he is likely to need to tell his administrators what to do and, at least to some extent, how and when to do it. Thus the president is constitutionally obligated to enforce immigration law and is fully entitled to issue executive orders in the course of fulfilling that obligation.

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In the late nineteenth and early twentieth centuries, the progressives created numerous agencies in the executive branch of government that were supposed to bring more rationality, efficiency, and order to American society.  They were to be run by scientific experts who would oversee a civil service bureaucracy that would govern objectivity as they made decisions free of politics and partisanship.

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New research about implementation of the Affordable Care Act finds that Obama administration regulations are allowing taxpayer subsidized health insurance for some people earning less than the statutory income floor and also for unlawful immigrants.

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The Treasury is not simply executing its task of printing money for legal tender and updating its design to thwart counterfeiters.  It is pursuing an ideological agenda outside of its authority. 

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Any “forced sale” of products would also be constitutionally questionable as an unprecedented intrusion into the marketplace because the government would be compelling a commercial transaction that does not involve a willing seller and a willing buyer.  The innovator company could even face liability if patients were harmed by a drug provided to them by a generics company to whom it was forced to sell.

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Companies inside and outside the health sector have spent countless billions of dollars trying to comply with the ACA. When the administration makes what some call “minor temporary course corrections,” it causes a new cascade of disruption and expenses for companies and makes it even harder for them to comply not only with the law but with ever-changing regulations. We have a process by which laws are to be enacted and changed, and that process has not been followed in implementing key provisions of the Affordable Care Act, as I have described here. I thank the committee for holding this hearing today to shed light on this issue. If our constitutional system of government is to survive, it must be based upon the rule of law.

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Last week, the United States Supreme Court once again opted not to rule a key provision of the Affordable Care Act unconstitutional. The case at issue, King v. Burwell, was technically not a challenge to the Affordable Care Act itself but rather the IRS’s implementation of the Act.

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Last week, the United States Supreme Court once again opted not to rule a key provision of the Affordable Care Act unconstitutional. The case at issue, King v. Burwell, was technically not a challenge to the Affordable Care Act itself but rather the IRS’s implementation of the Act.

 

“In a democracy,” Chief Justice Roberts wrote for the majority, “the power to make the law rests with those chosen by the people. Our role is more confined—“to say the law is.”

 

Such a statement is quite ironic given that the decision takes a statutory phrase and then contorts it to say the exact opposite of its natural meaning. While the policy implications of the Supreme Court’s upholding of the ACA will likely grab most of the headlines in the coming weeks, the Court’s complete abdication to the Executive on matters of statutory interpretation could shake the very foundations of our democracy for decades to come.

 

Administrative agencies like the Internal Revenue Service are outgrowths of the Executive Branch, which is charged with enforcing our nation’s laws. Therefore, any power given to such an agency is by implication given to the Executive. Last week’s decision granted administrative agencies a powerful new tool for reaching far beyond their congressional mandate. In doing so, the Court has paved the way for the Executive Branch to overreach even further beyond its congressional mandate by appealing to the principles enunciated by the Roberts court.

 

The fundamental question at issue in King v. Burwell was whether the IRS had exceeded its congressional mandate. The Affordable Care Act (ACA) sets up a scheme through which individuals purchase health insurance through government-run “Exchanges.” The ACA, as written, authorizes the IRS to provide tax subsidies only to those who purchase their healthcare though an Exchange “established by the State.” However, the IRS opted to provide subsidies to Americans who purchased their health insurance through Exchanges established by both the state and the federal government.

 

Chief Justice Roberts admits outright that “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” Justice Scalia had a biting response to this statement:

 

The Court claims that “the context and structure of the Act compel [it] to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” I wholeheartedly agree with the Court that sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections. Context always matters. Let us not forget, however, why context matters. It is a tool for understanding the terms of the law, not an excuse for rewriting them.

 

The saddest part about Justice Scalia’s dissent is that, as of the Court’s opinion this morning, he is wrong. He is not wrong because he is articulating the principles of statutory construction incorrectly. He is now wrong because the Supreme Court is not simply an interpreter of law – it is also itself a creator of law.

 

Generally, regulations are evaluated under the Chevron test to determine whether they exceed the mandate of Congress. That test asks whether to grant deference to a government agency’s interpretation of a statute that it administers.

 

However, the Court opted not to use the Chevron framework. Its stated reason for doing so was because this is an “extraordinary” case that affects a question of deep “economic and political significant” – the question of whether subsidies are available on Federal Exchanges. Under this rationale, the Court stretched the amount of deference due to administrative agencies to the point where the Internal Revenue Service now has the “discretion” to take an action that is the exact opposite of what the statute explicitly states.

 

In order to determine whether such deference is warranted under Chevron, the Court is first supposed to ask whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter. However, if Congress has not directly addressed the question at issue, then the Court should simply determine “whether the agency’s answer is based on a permissible construction of the statute.”

 

It would seem that the Court, before ever taking up the case, decided that it would find a way to uphold the Affordable Care Act. However, in doing so it has handed administrative agencies, and therefore the Executive, a powerful new tool. For years to come, executive-level agencies will argue in federal courts throughout the nation that they have discretion to do as they please, all due to the fact that their actions affect questions of “economic and political significance.” This Court has left its subordinate tribunals with the task of determining when an issue of such “significance” that executive agencies should have unfettered discretion to ignore the limitations of Congress and instead unilaterally carry out the will of the Executive.

 

The Roberts court today secured its legacy as a Court that twisted the law in order to serve a predetermined purpose of upholding the political class’s cause of choice. If it was not bad enough that this legacy in the short term leaves the American people with a healthcare system that focuses on “coverage” and “insurance” rather than actual access to healthcare and cost controlling measures, in the long term the Court’s jurisprudence will surely be cited for years to come as the tool of choice for the Executive Branch to expand its power far beyond its congressional mandate.

 

Elliot Engstrom is an attorney with the Civitas Institute Center for Law and Freedom, www.nccivitas.org.

 

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Guest Essayist: Nancy Salvato

The Supreme Court has been in the news this week and Justice John Roberts has been thrust into the spotlight because he authored the majority opinion in King v. Burwell.  In it, Roberts and the Court upheld the Patient Protection and Affordable Care Act, i.e. Obamacare. This is no ordinary decision, though.  The court’s ruling doesn’t simply interpret the law, it rewrites the law.

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Executive overreach can come in many forms. In this essay, we explore an executive department’s surprising announcement and its symbolic ramifications. 

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The below was originally published in FoxNews.com Opinion July 4, 2013

We have strayed from the path our Founders forged 237 years ago. Under the Constitutional Republic they created after the Revolutionary War, the United States has prospered over the centuries beyond the founding generation’s wildest dreams; however, we are wandering further from those very Constitutional principles that enabled us to thrive.

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Executive Overreach in American Elections

Perhaps one of my favorite cultural artifacts from the 1990s was those Magic Eye prints you could find in gift shops just about anywhere. They might look like a random assortment of colorful dots – but with a trained eye, images would practically spring forth from the frame. Sometimes executive overreach will seem as covert as a bull in a china shop. But in other cases – particularly when it comes to elections – misdeeds literally appear before you after the noise and distractions have been filtered out. The Obama Administration’s recipe of courtroom intimidation, activist collusion and bald-faced disdain for state powers to administer elections has laid the foundation for an eventual federalization of every citizen’s most basic form of raw power.

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This Constituting America study focuses on executive overreach and presidents’ potential violation of our Constitution’s separation of powers. On the other end of the spectrum, executive inaction can likewise threaten American principles. This essay focuses on President Obama’s failure to stand up for one particularly cherished American principle: freedom of speech.   The threats posed both by executive overreach and omission are quite deserving of our scrutiny if we want to prevent further drift from the principles and government processes that have historically enabled the United States to thrive.

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Much has been made in recent years about the abuse of presidential power. There is no shortage of recent examples to show that this is a legitimate concern. However, this is not entirely the fault of the current administration. Instead, the fault lies with the American people and the other branches of government that have failed to exercise constitutional checks and balances.

Interpretations of the Affordable Care Act have been regularly put forward that result in far more flexibility regarding implementation dates than the actual plain language of the law would allow. It has been shown that the Affordable Care Act was intentionally written so that only individuals buying health insurance through state-created exchanges would receive federal subsidies. Yet, the administration is ignoring the law, flowing subsidies through the federal exchange.

A more recent example of executive overreach is the new rule expanding authority of the Environmental Protection Agency over the waters of the United States to include almost any land where water puddles for significant time. The argument put forth by the EPA is that 117 million Americans are not protected by the Clean Water Act under current interpretations. But then, the Clean Water Act was never intended to encompass all waters in the country. It was aimed at cleaning up the big rivers and the Great Lakes, the navigable waters of the nation, to make it possible for fish to live in Lake Erie and to prevent chemicals in rivers from catching fire.

Today, some have an entirely new vision for what the EPA. They want it to save the world from man-caused global warming, which is still unproven. They want it to exercise power so as to prevent any chance of harm coming to anyone from any activity by mankind, especially petroleum production. Other than a few isolated situations and scary speculative stories, the new rule put forth by the EPA expanding its power is a solution in search of a problem. Major water pollution disasters are not happening in this country, and every state already regulates water purity and threats to it.

It would be easy to lay all the blame for executive overreach in the United States at the feet of the current administration, but this would be naïve. The blame equally belongs to the legislative and judicial branches. More fundamentally, the blame lies collectively with the people of the United States.

Since the Progressive Era, a presumption has prevailed in the collective mind of Americans that political and social salvation lies in the strong leader, or cadre of leaders, whose wisdom and breadth of knowledge, along with a supporting cast of experts, would best improve the lives of everyone. This attitude cuts across party lines and was reflected best in the administrations of both Roosevelts, Wilson’s presidency, and even the presidency of Herbert Hoover. It is now so commonplace that there is little use in differentiating presidencies since FDR except to say that President Reagan, who made some attempt to roll back the practical effects of the philosophy, was the exception.

With the idea that the central federal government actually manages the nation and has the power to create prosperity by doing anything more than smoothing the way for a market economy to prevail, Americans give license to government overreach. Congress, anxious to scratch the people’s collectivist itch, enables the executive by granting broad powers to interpret and implement vague laws that empower bureaucratic experts to do their will. The Supreme Court, heavily influenced by prevailing progressive philosophies, has allowed Congress to broadly delegate its legislative powers to the executive. The result is an executive branch that has become an example of nearly unchecked power.

Due to our form of government, we are not at risk of a rapid slide into totalitarianism like that of the German people in the 1930s, but we certainly seem to be getting close. A few more fallen checks and balances wherein a president is allowed to ignore the law with impunity could very well encourage a charismatic future president with dictatorial tendencies to ignore even more fundamental constitutional provisions, like the two-term limit. The current situation whereby individual members of congress determine whether a president is acting legally purely on the basis of partisanship, and the fact that a significant number of Americans apparently feel the same way, is good reason to quake for the future of the United States constitution.

Byron Schlomach earned his PhD in economics from Texas A&M University and has worked in the state public policy arena for over 20 years. He previously served as Chief Economist at the Texas Public Policy Foundation and the Goldwater Institute. Byron is now Director of State Policy at the 1889 Institute and Scholar in Residence at Oklahoma State University’s Free Enterprise Institute.

Click Here to Read More Essays From This Year’s 90 Day Study!

The three branches of the United States government are the Executive, Legislative and Judicial. The U. S. Constitution lays out the power and authority of each of these separate branches. It is important to note that the powers given to each branch are unique and separate and do not overlap or invade the authority of the other two.

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Americans abhor politicians who gather up inordinate powers. At least, that used to be the case. From our Revolution forward, Americans remained wary of any officeholder who tried to maneuver around constitutional limits. This was especially true if the trespasser happened to be a president.

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During the Watergate scandal, the press went into a veritable feeding frenzy when the Nixon White House reported that slightly more than eighteen minutes of tape recordings of a key conversation between President Richard Nixon and his chief of staff, H. R. Haldeman, were erased. The Nixon White House claimed it was an accident. This erasure contributed immeasurably to the perception that the president was corrupt and helped bring down a presidency that only two years earlier had won reelection in a historic landslide. (Ironically enough, one of the articles of impeachment 51 against Richard Nixon cited his attempts to use the IRS against his political enemies, attempts that were insignificant compared to the vast scope of actual IRS wrongdoing during the Obama administration.) Fast-forward to 2014, with the IRS facing allegations of wrong- doing that absolutely dwarfed in scale and scope any of the allegations against the Nixon administration, and it “lost” far, far more evidence than a mere eighteen-minute conversation.

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Imagine you approach a Hollywood executive with the following script idea: A powerful federal agency goes rogue. It targets political opponents with extraordinary investigations, targets opponents for audits, tries to throw opponents in jail, targets politicians who try to investigate its wrongdoing, and even attempts to monitor the prayers of the faithful. Then, just when investigators close in on the wrongdoers, they suddenly disclose that they’ve “lost” all the relevant evidence. The movie would never be made. Why not? Because it’s too cartoonish, too absurd to be believable. But in the modern IRS, truth is truly stranger than fiction.

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In an article by Connor Wolf called This Is The Difference Between TPP And TPA (Hint: They Are Not The Same Thing), he explains that these two bills are linked together because Trade Promotion Authority (TPA) is a means to fast track passage of the Trans-Pacific Partnership (TPP).  I am confused by this line of reasoning because as a stand-alone bill, TPA is intended to provide transparency to all trade negotiations by soliciting public and congressional input throughout the process, however, TPP as a stand -alone bill, is behemoth and most of the information to which the public has access has been leaked.  Furthermore, it was negotiated behind closed doors.  According to the verbiage of TPA, if TPP is not negotiated using TPA guidelines, the fast track option is negated. So why do news outlets and a wide range of legislators portray these two bills disingenuously? Bundling the TPA and TPP as one idea called Obamatrade is no different than bundling immigration reform and border security, which are two separate issues.  One is about drug cartels and terrorism and the other is about how we manage people who want to immigrate to the United States.

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June 28, 2014 is an historic day in thwarting Presidential over-reach. On that day the U.S. Supreme Court unanimously ruled President Obama’s recess appointments unconstitutional. NLRB versus Noel Canning, ET AL was a rare instance when the Judicial Branch acted as referee and reset the balance of power between the Executive and Legislative Branches.

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Waters, Regulation, And Political “Sleight Of Hand”

At its most-basic level, sleight-of-hand is the art of performed misdirection.  A magician gets an audience to focus their attention on something shiny he is holding in one hand, distracting you from the trick he is attempting behind his back.  If successful, the audience is fooled into thinking that something magical has happened, completely unaware of what tricks the illusionist has engineered to accomplish his feat.  Woe be unto the illusionist who can’t complete his feat without exposing the artifices used to achieve it, or, worse, who public fails at their misdirection.

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How We Got Here

There is a truism when it comes to the power of the federal executive branch: over time, the power of that branch grows.

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The balance to solve the problems inherent in past democracies are addressed in the Federalist Papers. One topic that takes precedent is the idea of popular sovereignty and its dangers that can result in the tyranny of the majority. Whereas most Founders would agree that man is rational and capable of solving problems through reason, and that the will of the majority may be correct, this will is quite fallible. The recognition of this aspect of human nature lays the foundation upon which the Constitutionalists will devise the mechanisms and safeguards within government to allow for popular sovereignty to rule, but tyranny of the majority to fail.

The very fact that these Federalist Papers were penned and published reveals a trust and confidence in the American population to deliberate and reason. In the very first of them, Federalist Paper 1, John Jay sets the tone by directly relating to the consensus of all three social contract theorists’ (Hobbes, Locke and Rousseau) beliefs that men are rational and capable of solving problems with reason (Baradat 68). “My arguments will be open to all and may be judged by all” (Rossiter 30). Publius (pen name), in the next paragraph, lays out his topics of argument and rebuttal in a cogent, logical way.

Federalist Paper No. 6, written by Hamilton, recognizes the dangers of the motives of men as represented in republics and represented as individual kings. Hamilton reminds us in his discussion responding to the advantages of the Confederation would create more harmony, “…would be to forget that men are ambitious, vindictive, and rapacious” (Rossiter 48). Hamilton shared Madison’s distrust of human nature, but believed in people’s ability to overcome said deficiencies with reason. This tone seems to contradict Thomas Jefferson’s notion that the nature of man is generally good. Locke recognized the “dignity of human nature” (Baradat 71) whereas Hobbes distrusted it (69).

Thomas Jefferson, too, respected the dangers that lie within the hearts of men. In his first inaugural speech, Jefferson states, “All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression” (16).

Federalist Paper No. 10 is Madison’s discourse on the dangers of the so-called factions that can oppress the minority’s rights. Madison, like Plato, was weary of democracy and distrusted the masses in a crisis. Madison points out throughout his writings the crisis point of a society deteriorating the democracy into a dictatorship.

Madison so distrusted the masses that he devised and defended the notion of the checks and balances in government. If enough people with the same motive and ambition organized, this so-called faction as he called it could rule, via democratic institutions, to the detriment of the minority. By having a centralized government with divisions of power in the legislature, and the executive and judicial branches, the possibility of enough people creating that single-minded majority is lessened. The danger of the faction does not mean that a pluralistic viewpoint and mechanism cannot produce good for the community. Elected officials would be charged with rendering government for the good of the people, not the local, temporary will of the people. By dispersing power, even if an elected official was not the statesman of integrity representing the good of the people, the mechanism of diversifying power offered a safeguard against that potential tyranny.

Unlike Rousseau who thought the majority can do no wrong—that the general will of the people is always good by definition of it being the will of the majority—Madison examined too many historical examples to the contrary. People needed material well-being first in order to ponder and reason with rationality and with an outlook for the greater good. Crisis is what caused the rational to turn to the mob. Ay protecting individual rights, freedoms, and property, man can be free to exercise their thought for the greater good.

Madison’s view of the American people can best be summed up by Robert Middlekauff in The Glorious Cause: “But underlying any successful constitutionalism there had to be a virtuous people. The Founders, especially Franklin, Madison, and Wilson, believed that the Convention must risk all, indeed risk the Revolution, by trusting the virtue of the American People” (653).

Madison viewed the risks involved in democracy of the tyranny of the majority to be less intense in America than in other nations or nation-states because of the size of its territory and diversity of population over that vast land made the possibility of any one faction dominating another less probable. The House of Representatives would be popularly elected. The removal of the Senate from popular control separated the majority from the potential tyranny. The belief in popular sovereignty tempered with the fear of the majority’s tyranny resulted in the remedied called the bicameral legislative branch.

These limits “protected the rights of the minority and of property, rights which had helped set the revolution process in motion in the 1760s” (Middlekauff 653).

Madison as well as other founders also recognized a Providence that seemed to guide humanity and the new nation. Jefferson reiterated this. Although Christianity or any particular religion was not inserted into the publication of the Federalist Papers nor the Convention itself, clearly an underlying virtue subject to an Almighty underscored the sentiments of most Americans and its founders. Religion was referenced as a commonality among men, but not a cure for its ills. “Yet the Constitution managed to capture some of the morality long common in American life and clearly present in the first days of the Revolution” (Middlekrau 652). As mentioned previously, Locke also held the assumption that men are accountable to a God who created them and the natural law.

The contradiction that Madison and other nationalists had to reconcile was the notion that popular sovereignty—the will of the people and self-government—was necessary and proper, but that the ills that could result (tyranny of the majority) needed advance remedies. The Constitution and the federal government it frames exalt the virtues and curtail the ills as best architected thus far in history. “It [the Constitution] aimed to thwart majoritarian tyranny, but it not deny that sovereignty resided in the people. Government should serve the people, and in the Constitution the delegates sought to create a framework which would make such service effective, though not at the cost of the oppression of the minority“(Middlekauff 652).

Moreover, “The delegates placed their trust in the people because they had no choice: a public had to found itself on the people. Their suspicions of popular power led to a preoccupation with restraints and curbs on the undue exercise of power by deedless majorities” (653). Popular sovereignty and the fear of the tyranny of the majority was therefore reconciled by an appeal to the people to approve the strong federal government under the Constitutional framework proposed.

James Madison penned a document called “Vices of the Political System of the United States” in April 1787. In this, he outlined his discontent with the Article of Confederations. This document reveals additional insight to the underlying beliefs Madison had regarding the nature of man and its ills when demonstrated in a democracy. Madison writes of the causes of injustice in the Laws of the States in two places: the Representative bodies and in the people themselves. Madison asserted that appointments to representative bodies have three motives: ambition, personal interest, and public good. He feared that the public good as perceived could be a mask for the first two. The people from whom the representative is elected are also a so-called danger in Madison’s eyes. In this discussion, Madison further points out that the factions can still choose a representative that will not seek a greater good over the passions of the locality. Madison views that even reputation and religion cannot overcome this propensity for self-interest at the expense of others. These ideas in this document Madison penned are reiterated in Federalist Papers Numbers 10 and 51. By broadening the sphere of the republic, the dangers herein expressed are lessened (Green 517-518). Federalist Paper No. 51 examines the role of the checks and balances within the branches to protect the people by controlling each of the other branches and itself. The checks and balances protect the people from the government, and from each other, and the government from itself.

Therefore, this dual nature of man, a species created by God and guided by Providence, a species with innate capabilities such as reason and rationality; whose character traits include virtue, integrity and a quest for the common good; whose very nature is of equal value to all others and contains ambition and a desire for happiness and improvement. This nature also holds the ability to veer into darker traits such as brutish force to violate the rights of another via oppression to achieve self-interest. Reconciling these seemingly contradicting forces provides the premise on which the construction of the Constitution of a national federal government was framed. Democracy is both endowed by Nature as the right form of government, yet it is the very nature of the governed makes democracy dangerous. In this, then, is born the brilliant mechanisms of the Constitution that illuminate the will of the people and protect against its ills: Separation of power via an executive, legislative (bi-cameral) and judicial branch.

Championed by Madison, Hamilton, and Jay in the Federalist Papers and propelled by fellow founders such as Thomas Jefferson and Benjamin Franklin, this careful and meticulous examination of human nature brought forth a new paradigm on whose successes we enjoy liberty to this day.

Amy Zewe is a professor of English and the Humanities, completing graduate work at The George Washington University and Tiffin University. She is also a freelance writer and editor as a business communication specialist and offers commentary on political and social issues to various media outlets. Amy resides in Northern Virginia.

Works Cited

Baradat, Leon, P. Political Ideologies. Upper Saddle River, NJ: Prentice Hall, 2009. Barron, Robert C. eds. Jefferson The Man in His Own Words. Golden CO: Fulcrum Publishers. 1998

Greene, Jack P. eds. Colonies to Nation 1763-1789 A Documentary History of the American Revolution. New York: W.W. Norton & Company. 1967.

Locke, John. Second Treatise of Government. Macpherson, C.B. eds. USA: Hackett, 1980.

Middlekauff, Robert. The Glorious Cause: The American Revolution, 1763-1789. New York: Oxford Press. 1982

Rossiter, Clinton, ed. The Federalist Papers. New York, NY: Signet, 1999.

Click Here to Read More Essays From This Year’s 90 Day Study!

The founding fathers, particularly the writers of the Federalist Papers, were well versed in the classics, Greek literature, historical records of successes and failures of governments, and the political theorists of their era. The Founders’ views of human nature are the basis upon which they created a democratic republic such as they did in America. This paper will examine elements of the how the Founders’ viewed human nature, and how that view influenced the resulting mechanisms placed within the Constitutional government of the United States. This examination will focus on James Madison, Alexander Hamilton, Federalist Papers Numbers 6, 10, and 51, and other writings of Madison. In addition, the theories and writings of the era that influenced both Madison and other founding members of the federal government will be reviewed.

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The IRS seems to be replacing “tax collection” with “oppression and censorship” as a key part of its agency mission statement.

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The cliché that America is a “nation of immigrants” is true as successive waves of immigrants throughout its history came to this country for its freedoms and opportunity.  The Statue of Liberty symbolically welcomes immigrants to America.  Over the past 150 years, American immigration policy has alternated between restriction and liberalization.  But, whatever vacillating nature of immigration laws, the unifying core was that constitutionalism generally guided the process of laws regarding immigration.

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In late May 2013, we’d seen enough. We filed a lawsuit, the largest in ACLJ history.21 Ultimately including forty-one conservative and pro-life organizations in twenty-two states, it represented a comprehensive attack on the IRS targeting scheme and laid out in detail the consequences of the IRS’s misconduct. The ACLJ filed its case with the following understanding:

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Mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. Thomas Jefferson Declaration of Independence

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In communities across America, parents and students are increasingly opting out of onerous standardized tests being pushed by the Department of Education. These assessments, which are directly related to both Common Core and No Child Left Behind, often put young children in high-pressure testing situations for hours on end. In fact, the length of some of these tests is comparable to state bar examinations for aspiring attorneys. And to boot, educational experts are increasingly finding that these tests have little, if any, educational value for children.  The context behind this nationwide opt out movement, and the Department of Education’s response, is a prime example of Executive overreach at work in a very intimate part of American family life.

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“Let’s translate: when evaluating progressive organizations, the IRS singled out only seven groups for additional scrutiny, asked an average of only 4.7 additional questions, and approved every single group.

By contrast, the IRS singled out 104 conservative groups, asked an average of 14.9 additional questions (some with multiple subparts), and ultimately approved fewer than half,”  Jay Sekulow. 

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By early 2010, two developments were shaking American liberals to their core. The first was the rise of the Tea Party; the second was a Supreme Court case that protected the right of free political speech. Read more

A t-shirt I saw recently embodies the ultimate justification for parental authority, “I’m the Dad, That’s Why.” Of course, substituting “Mom” works, as well. President Obama’s claims of executive authority to act when Congress fails to enact his vision about immigration matters, Obamacare, or the environment, similarly appears to be, “I’m the President, that’s why.” As a t-shirt slogan, it works; as constitutional doctrine, not so much.

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The Obama administration has spent billions of taxpayer dollars implementing the Affordable Care Act, often taking vast liberties with statutory language.  The administration’s actions were the subject of a House Ways and Means Oversight subcommittee hearing on Wednesday, chaired by Rep. Peter Roskam (R-IL).

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When Barack Obama was elected in 2008, much was made in the press of the perception that this event reflected voters’ fatigue with foreign entanglements and a turning inward to domestic issues. While there is truth to that, events are not controlled by voters’ sentiments and have a way of upsetting comfortable delusions. It might be said, with apology to Leon Trotsky, “You may not be interested in international conflict, but international conflict is interested in you.” Thus, by 2012, Russia rising, Iraq fracturing, Syria boiling, China blustering once again placed foreign relations on the political radar. Still, Mitt Romney’s warnings about, for example, Russia as the preeminent geopolitical threat, fell on insufficient numbers of listening voters’ ears, and Barack Obama was re-elected.

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One of the most controversial recent presidential actions is the Obama administration’s desire to enter a “nuclear deal” with Iran. To prod Iran into an agreement that he appears desperately to want, President Obama intends to waive sanctions imposed under earlier legislation and executive action. As shown by an open letter to the Iranian government authored by Senator Tom Cotton and signed by 47 Republican senators, a hotly-debated aspect of the deal is which role, if any, Congress would play in this spectacle.

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Constituting America first published this message from Founder & Co-Chair Janine Turner over Memorial Day Weekend, 2010, the inaugural year of our organization.  We are pleased to share it with you again, as we celebrate our 5th birthday!  On this Memorial Day weekend, I think it is appropriate to truly contemplate and think about the soldiers and families who have sacrificed their lives and loved ones, and given their time and dedication to our country. Read more

The words “education,” “schools,” and “curriculum” do not appear in the U.S. Constitution or any Amendments.  This is not to say the Founders were not supportive of public education. Many of them, most notably Thomas Jefferson, wrote in support of the concept because they believed that, “an educated citizenry is a vital requisite for our survival as a free people.”

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The only way for the United States to wrestle the reins of power from the general government is a renaissance of State powers as codified by the Tenth Amendment to the Constitution.  Only then will we have true government by the “consent of the governed.” 

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Given the pervasiveness of regulation over the American economy, ensuring procedural due process for all Americans wishing to participate in both adjudications and rulemakings before administrative agencies is no easy task.  Indeed, unlike Congress—which is a political institution specifically designed by the Founding Fathers to promulgate laws based on the will of the people—an administrative agency, as a creature of Congress, is specifically designed to be apolitical so that it can implement the will of Congress by following its particular governing statute (e.g., the Federal Communications Commission and Communications Act; the Federal Energy Regulatory Commission and the Federal Power Act).  For this reason, we have the Administrative Procedure Act, which requires, among other things, administrative agencies to provide interested parties with a meaningful (and orderly) opportunity for notice and comment regarding agency decisionmaking, and to disclose any private meetings with outside parties which may have a material impact on this decisionmaking (what are known as “ex parte” rules).  By establishing such procedural safeguards, an administrative agency can (ideally) make dispassionate decisions based on the law, economics and the facts before it, rather than succumb to outside political pressure.

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American citizens should never fear their own government. It’s Un-American. The Declaration of Independence directed our Founders to organize government powers “in such form, as to them shall seem most likely to effect their safety and happiness.” We should be able to go to bed at night feeling safe from hostile pounding on the door. The concept of the home as a safe refuge has been a key principle of Western Civilization going all the way back to the Roman Republic.

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Among the things we have to thank the French for is the invention of the bureaucracy, which more than one dictionary defines as a system of government in which most of the important decisions are made by state officials rather than by elected representatives.

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By our count at the Galen Institute, more than 49 significant changes already have been made to the Patient Protection and Affordable Care Act: at least 30 that President Obama has made unilaterally, 17 that Congress has passed and the president has signed, and 2 by the Supreme Court.

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“The Constitution protects us from our own best intentions. It divides power among sovereigns and among branches of government precisely, so that we might resist the temptation to concentrate power in one branch as the expedient solution to the crisis of the day.”

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George Washington’s Proclamation of Neutrality, Thomas Jefferson’s Louisiana Purchase, Abraham Lincoln’s Emancipation Proclamation, invasion of the South, and suspension of habeas corpus, Harry S. Truman’s railroad seizures, and the growth of militarism domestically and internationally by George W. Bush and Barack H. Obama are all examples of executive overreach; examples of when the President used powers not given to him by the Constitution or exercised by his predecessor. Executive overreach is neither unique to the American system nor new to our time.  Efforts to limit executive control, whether it be an elected president, entrenched oligarchy, or hereditary monarchy, have defined Western political thought and reform since Magna Carta was signed by King John of England in 1215 at Runnymede. The greatest and most enduring thinkers—John Locke, Baron de Montesquieu, Jean Jacques Rousseau—that influenced the political revolutions of the 18th Century and still define the contours of our current political paradigm were concerned with restraining executive authority through the dispersion of political authority. In 1776 the U.S. declared itself independent and proceeded to rid itself of an executive and parliament that had usurped their authority. But no sooner did America win its independence did it seek to reconcentrate power into a centralized governing structure by ridding itself of the Articles of Confederation and ratifying the U.S. Constitution. The responsibility of an enlightened and engaged citizenry is to thwart all efforts of overreach.

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In addition to the power to enact important reforms like the REINS Act and the USA Freedom Act, Congress has another time-honored power to exercise when it needs to stop an overreaching executive. It is a power wielded far too infrequently in recent years. And it is a power that James Madison described in Federalist 58 as “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

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The rule of law is in grave danger, as federal regulators use ever thinner legal pretexts to enable vast public policy changes without votes by our elected representatives.  In a span of just seven days, (essay originally published on March 5, 2015) the FCC declared the Internet a public utility, Congress acceded to DHS implementing executive amnesty, the president used a veto threat to protect the NLRB’s ambush elections rule, and the Supreme Court’s four liberals showed they are not just willing but enthusiastic to allow the IRS to ignore the plain language of Obamacare.  A great week for regulators, but a terrible week for everyone else.

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One Saturday morning a month, I take my eight-year-old son and my seven-year-old daughter to the neighborhood big-box hardware store for “Kid’s Craft Day.” They get an apron to wear and an assemble-it-yourself kit with instructions for building a flower pot rack or a wooden photo frame. For an hour, they get to pound nails, glue joints, and slap paint on a project that has no risks or liability attached to it. And while they’ll hopefully have the pride that comes from a solid job at the end, as every mom and dad there knows, this time together isn’t really about the finished product, but about learning the process of carefully following directions.

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The world where House and Senate Chambers are packed with Members attentively listening to their colleagues ended long before films like “Mr. Smith Goes to Washington” and “Advise and Consent” paid it homage.

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The Supreme Court justices had a lively discussion yesterday (essay originally published March 5, 2015) during arguments in King v. Burwell about who Congress intended to get health insurance subsidies and under what conditions. Read more

A federal district judge ruled on Monday (essay originally published December 18, 2013) that the National Security Agency program tracking all Americans’ phone calls is “probably unconstitutional.” In Klayman v. Obama, Judge Richard J. Leon of the U.S. District Court for the District of Columbia held that “such a program infringes on ‘the degree of privacy’ that the Founders enshrined in the Fourth Amendment.”

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Are drones coming home to roost? Last week (essay originally published May 30, 2013), President Obama announced his administration’s counterterrorism policy. The question is, will this policy defend our liberties — or destroy them?

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“Governments are instituted among Men, deriving their just powers from the consent of the governed”  The Declaration of Independence used these words to legitimize our founding as a nation. Fifteen simple words, but they embodied a world-shattering idea. Kings supposedly derived their authority from God, but the Declaration declared 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.” These subversive words flipped the divine right of kings on its head. Instead of kings, God endowed all of mankind with natural rights. Read more

On the subject of free speech the founders could not have been clearer. When they wrote that “Congress shall make no law” inhibiting its exercise or that of freedom of the press they were quite specific.

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On December 7, 1941, Japan bombed Pearl Harbor and killed 2,500 American servicemen.  Japan’s ally, Germany, followed up the attack by declaring war on the United States.  Just after noon on the following day President Franklin D. Roosevelt addressed the shocked members of Congress and told them that the sneak attack was a “date which will live in infamy.”  The Congress declared war on Japan by an 82-0 vote in the Senate and nearly unanimous vote of 388-1 in the House.  When Japan’s allies, Germany and Italy, declared war on the United States, Congress responded in kind on December 10.  World War II became the last war in which the United States declared war against a foe.

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The Founders believed that consolidating executive, legislative, and judicial powers would threaten liberty, so to avoid this tragedy, they built our constitutional framework with checks and balances. James Madison, the Father of the Constitution, wrote in Federalist 47 that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

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In late January 1904 the president of Princeton University stepped to the podium of The Outlook Club in Montclair, New Jersey. Today, university presidents get into the news when some scandal erupts, but at the beginning of the last century they often enjoyed the status of what we now call “public intellectuals”—frequently quoted in the newspapers on the issues of the day, looked to for solutions to economic and social problems. Nicholas Murray Butler at Columbia, Charles William Elliot at Harvard, and Arthur Twining Hadley at Yale were well-respected national figures. The Outlook Club was exactly the platform for such a person; possibly named after The Outlook, a prominent magazine featuring literary and political commentary associated with the several “reform” movements of the day, the Club afforded its speakers an audience of university-educated civic leaders who used their influence to promote “good government”—by which they first intended government free of corruption and of the party “bosses” associated with it, but which would soon coalesce into something still more ambitious: Progressivism.

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Oh, how we fret!  Rightfully, of course, for nothing is more frightening to the American Mind than the specter of overweening authority.  During the second Bush Administration, the Left was beside itself with concern over executive overreach (from the Iraq invasion to the Patriot Act) and now, during the Obama Administration, the Right is beside itself with concerns about usurped power (from the federal minimum wage hike to Immigration amnesty).  It is good to highlight the tendency of Presidents to overstep their constitutional bounds—but emphasizing it risks ignoring a far deeper and more insidious problem: the immense and pernicious power of Administrative Despotism.  While we focus in animated concern upon the head of the snake, we forget the innumerable coils that already surround us.

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News reports of federal agencies abusing the rights of Americans and violating the law have become all too common. It is no longer plausible for defenders of big government to argue that these abuses are simply a few isolated incidents. We have witnessed a veritable parade of lawless abuses from all corners of the federal government. Read more

This year marks the 50th anniversary of the opening of The Sound of Music, a sweet love story built around the somewhat grittier sub-plot of Nazi Germany’s annexation of Austria in the late 1930s. The movie is actually based on the true story of an Austrian naval hero – Captain Georg von Trapp – who opposes the Nazi Anschluss and refuses to accept a commission in the German navy. He takes a stand near the end of the movie by singing the patriotic song “Edelweiss” at a local festival. The song summons all Austrians who love freedom to stand by their convictions and refuse to violate them, even when being coerced by an out-of-control executive.

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Under President Obama, America has witnessed an unprecedented expansion of presidential power.  This is not merely the observation of political opponents.  Liberal law professor Jonathan Turley—who voted for President Obama—has reached the same conclusion:  “We are seeing the emergence of a different model of government in our country—a model long ago rejected by the Framers.”[1]  “What’s emerging,” according to Professor Turley, “is an imperial presidency, an über-presidency . . . where the President can act unilaterally.”[2]

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Criticism abounds regarding President Barack Obama and executive overreach. To name one example, the Affordable Care Act (ACA), commonly known as “Obamacare,” has raised the ire of many Americans. Expansive government and centralized approaches to political issues, admittedly, started before the Obama administration, but current executive overreach has accelerated the size of the national government and threatens individual liberty.  Various administrative divisions, whether classified as executive agencies or executive departments, such as the Environmental Protection Agency and the Department of Education, have been scrutinized, too. Through “the administrative state,” what some have labeled the “fourth branch of government,” the executive branch seemingly continues to have its fingerprints on more and more aspects of American lives. Read more

Executive overreach often refers to the growth of the administrative state beneath the President, and whether it has grown beyond the Constitutional limits meant to ensure checks and balances, and protect the liberty of the people.  When discussed in the media, among academics, and at dinner tables and coffee shops around the United States, attention is often turned towards the actions, or attempted actions, of the current White House resident.  Debate over executive orders, signing statements, the limits of war powers, recess appointments, border security, healthcare, swirl and blend in a way such that those without an addiction to the news or a background in government, can easily become lost, or worse, turned off from what is happening in current events.

Functionally, and regardless of ideology, it is difficult to debate the fact that the presidency has overstepped the vision the founders had for the office, and the restraint on power the Constitution was intended to serve as. Missing from the discussion is that the presidency – both the office and the person – has more and more insinuated itself into the daily lives and workings of citizens.  This goes well beyond, and began well before, movement politicians, like President Obama or Ron Paul’s attempts for the Oval Office.

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The power to tax is the power to destroy. When Justice Marshall wrote these words in 1819 (echoing the words of Daniel Webster) he was expressing what could be considered a prophetic statement–those who have the power to tax wield enormous power over everyday lives, power that is apt to be abused.

This mistrust of those who hold the tax and power is nothing new. Looking back at the New Testament, those who witnessed Christ’s acts noted the skepticism that abounded because among those Jesus surrounded himself by where tax collectors, who were commonly reviled.

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Expanding Presidential power usually erodes democracy, expands government, and facilitates the rise of an increasingly unaccountable “Imperial Presidency”.  Ironically, giving Presidents more power to control spending does just the opposite.

The struggle over government spending has been a fundamental point of contention since the earliest days of our Federal Government.  In the last twenty years, this issue has split the Democrats in Congress, frustrated Republican and Democratic Presidents, and generated numerous Supreme Court cases.  The 1974 effort to resolve the matter, once and for all, substantively contributed to the current explosion in federal spending.

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Articles I, II, and III of the Constitution describe the roles of the legislative, executive, and judiciary branches of the federal government. It’s clear that the Founders intended for Congress to make the laws, the administration to enforce the laws, and the courts to interpret the laws.  Although this doctrine of Separation of Powers sounds simple, it’s not. The administrative branch holds great power to promulgate regulations and make executive decisions (orders and actions) that wield the force of law, and today, many fear that this power is being abused. Read more

As introduced in the previous post, the 1952 Steel Seizure Case is a cornerstone of the Court’s separation of powers jurisprudence. The case arose out of President Harry Truman’s decision to seize the steel mills to prevent a labor strike that, he claimed, threatened steel production for the war effort in Korea. The Court was presented with the difficult problem of resolving, in a legal setting, the essentially political wrangling between Congress and the President, with the latter pressing his constitutional power claims to the maximum. At another level, the case exposed the fault lines between the American view of the Constitution as both the source and the basic formal law of government, and the classical view of constitutions as mere reflections of formal and informal political accommodations already made otherwise. Read more

Separation Of Powers Case: Youngstown Sheet & Tube Co. v. Sawyer (Part 1)

When the Supreme Court addresses constitutional aspects of executive “overreach,” it often does so in the context of a clash between the President relying on a broad reading of his constitutional powers and the Congress attempting to limit those powers through the use of its own. The controversy that raises the issue is usually said to involve the Court in the delicate, but vital, role of “policing the boundaries established by the Constitution.” To decide just where the boundaries relating to the separation of powers lie, the Court typically looks to the framework established in the foundational case, Youngstown Sheet & Tube Co. v. Sawyer (1952). Read more

The phrase checks and balances has become so commonplace that it is often spoken as if it were a single word, but in the eighteen century, it was two distinct concepts. John Adams may have been the first to put the words checks and balances together in that order in his 1787 publication, A Defense of the Constitutions of Government of the United States of America, but balance and check is the phrase used in The Federalist, and that is the sequence James Madison would have thought appropriate. First, balance powers between the branches of government, and then check those powers so they are not abused.

In his voluminous Constitutional Convention notes, Madison recorded himself as saying that he “could not discover … any violation of the maxim which requires the great departments of power to be kept separate and distinct … If a constitutional discrimination of the departments on paper were a sufficient security to each against encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper. Instead therefore of contenting ourselves with laying down the theory in the Constitution that each department ought to be separate and distinct, it was proposed to add a defensive power to each which should maintain the theory in practice.”

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Concentrated political power frightened the Founders. They especially feared unrestrained executive power. In fact, some of the delegates to the Constitutional Convention fought for a weak executive because history had been a continuous stream of kings and rulers supplanting legislative bodies. Despite misgivings, James Madison convinced the delegates that balanced power with effective checks was the only way to secure liberty and the idea became foremost in the design of a new government.

When you study the political formation of the United Sates, one is struck by the recurrence of the checks and balances theme— in Madison’s convention notes, the Constitution itself, the Federalist Papers, the minutes of the ratification conventions, and even the Anti-Federalist papers. There can be no doubt that a national consensus supported the concept that each part of the government should act as an effective check on all of the other parts of the government. Read more

Is the pending deal with Iran over its nuclear program a treaty – or not?  What powers does the Constitution give the President, and what powers does it give the Senate?

There are three places in the Constitution that address treaties with other nations.  The first is the most relevant to this discussion.  It is easy to recall where it is: just remember the numbers 2-2-2: It is Article II, Section 2, Clause 2. [The President] “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…”  That clearly makes a treaty conditional upon the concurrence, or affirmative vote, of two thirds of the Senators voting.  Both the President and the Secretary of State are former Senators, presumably well-acquainted with that stipulation.  So on what basis can they claim that Senate approval of this proposed deal is not required? Read more

Constitutional Crisis – How Executive Overreach is Impeding Your Liberties and Undermining States’ Sovereignty: A Study on the Critical Erosion of Constitutional Checks and Balances.

This year’s 90 Day Essay Study will focus on examples of the dramatic expansion of executive branch power at the expense of both Congress and states’ sovereignty – and explain why this is happening. It is, of course, happening due to the breakdown of the Constitutional checks and balances, and the White House, Congress and the Supreme Court are all at fault.

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Are you looking for a fun way to get your students excited to learn about the U.S. Constitution?

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SpeechScreenShot3Constituting America founder and co-chair, Actress Janine Turner (Northern Exposure, Cliffhanger, Friday Night Lights), joined by Constituting America National Youth Director Juliette Turner and/or one or more of our“We The Future” student contest winners, will speak to your child’s classroom in person, or via Skype or Google Hangout!

HERE’S HOW IT WORKS:

Janine and Juliette and/or our Contest Winners will provide a non-partisan, age appropriate conversation about the Constitution for any educational department: Drama classes, music classes, government and history classes, English classes and more are all welcome! Our winners will show you how they used their songs, short films, public service announcements, artwork, poems, and speeches, to both promote the U.S. Constitution, and to win scholarships, trips around the country, cash prizes and more!

Janine and Juliette will teach your students about the U.S. Constitution in a non-partisan way –  covering a fun “Constitution Quiz” that emphasizes the roles of various branches in our government and some of the most important points about the U.S. Constitution.

This is also a unique opportunity for your students to speak with Janine about pursuing a career in Radio, Television, or Film.

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SkypeSeesions

These non partisan, educational internet sessions are tailored to your teaching schedule and classroom needs – we can work with speaking slots as short as 15 minutes or as long as 35 or 40 minutes and can cover specific topics upon request. These sessions are free learning opportunities for your students. There is no cost to your school! Internet sessions are perfect for home school groups, scout troop meetings, Patriot Club meetings or anywhere else that young people are gathered who want to learn about the Constitution, and our exciting “We The Future” Contest!

What Teachers Say:

“Wow! To hear someone with this much passion for making sure our youth have a thorough understanding of the Constitution is amazing. Our students at “The” Barack Obama Male Leadership Academy enjoyed the challenges presented by Janine and appreciated the opportunity to learn from a truly zealous advocate of the document that founded these United States of America. Thanks for a GREAT presentation. The students enjoyed it and so did I. They are chomping at the bit for your return.”  – Tom McLaughlin, Teacher, “The” Barack Obama Male Leadership Academy, Dallas, Texas, May 2015

Our experience with Constituting America was unique and inspirational.  My students were able to make real-world connections with people who care deeply for our country’s founding documents.  They were blessed to receive relevant material that bring the subject to life in a way that traditional textbooks do not.  I often struggle as a teacher with a balance between that which we must learn and that which makes learning worthwhile.  Constituting America brought both of those together in a memorable way that my students and I will never forget.   Thank you from East Texas!  Jeff Sims, East Texas Charter School, September 2016

RESERVE YOUR SKYPE / GOOGLE HANGOUT SESSION Or “In Person” Speech NOW:

E-Mail: ConstitutingAmerica1787@yahoo.com

Phone: 1-888-937-0917

Schools & Organizations Constituting America Founder  Co-chair Janine Turner has spoken to (by Skype or In Person):

Adventures of Eastern Tennessee Homeschool – Knoxville, Tennessee

Alpha Chi Omega Alums – Colleyville, TX

American Heritage Girls – St. Louis, MO

Arise Ministries – Oklahoma, OK

Atlantic Middle School – Quincy, MA

Babes Chicken Dinner House Restaurants Employees (Frisco, Carrollton, Garland, Arlington)

Ballard High School – Seattle, Washington

Ballwin Homeschool Group – Ballwin, MO

Benchmark Elementary Teacher-in-Service Day, Phoenix, AZ

Booker T. Washington High School for the Performing and Visual Arts – Dallas, TX

Boy Scout Troop 57 – Garland, Texas

Boy Scout Troop 1910 – Keller, Texas

Boys and Girls Club – Arlington, Texas

Boswell High School – Fort Worth, Texas

Boyd High School–McKinney, Texas

Bussey Middle School – Garland, Texas

CAN! Academy – Dallas, Texas

Cheryl Felicia Rhoads Northern Virginia Acting School – Falls Church, Virginia

Congressman Johnson’s Congressional Youth Advisory Council – McKinney, Texas

Conover Road Elementary – Colts Neck, New Jersey

Constitutional Leadership Seminar – Yorktown, VA

Convention of the States – A project of Citizens for Self-Governance – Dallas, TX

Cooke County Republican Party – Convention of States – Gainesville, Texas

Covenant Christian Academy – Colleyville, Texas

Cumberland Road Elementary – Fishers, Indiana

Cuyuna Regional Medical Center – Brainerd, MN

Dallas Salesmanship Club – Dallas, TX

DAR Capitol Hill Chapter – Washington, DC

Desert Townhall – Palm Desert, California

Eagle Mountain Elementary – Fort Worth, Texas

Eddins Elementary – McKinney, Texas

Evangel Classical Academy – Alabaster, Alabama

Fort Worth Country Day – Fort Worth, Texas

Founders Classical Academy – Lewisville, Texas

Gainesville Rotary Club – Gainesville, Texas

Grace Covenant Academy – Frisco, Texas

Grapevine Faith Christian School (Juliette Turner) – Grapevine, Texas

Great Homeschool Convention – Ft. Worth, Texas

Green Oaks School – Arlington, Texas

Harwood Junior High – Bedford, Texas

Highland Park High School – Dallas, Texas

Imagine International Academy of North Texas –McKinney, Texas

Irving Sunrise Rotary Club – Irving, Texas

iHigh Graduation – Lewisville, TX

iSchool High – Lewisville, Texas

John Ben Shepperd Leadership Institute – Austin, Texas

Kingwood Middle School – Kingwood, Texas

Knights of Columbus – Irving, Texas

Knoxville Home School – Knoxville, TN

Leo Linbeck Google Hangout – Colleyville, TX

Lyles Middle School – Garland, Texas

Los Angeles Film School – Los Angeles, California

Meadow Oaks Academy – Mesquite, Texas

McSpedden Elementary – Frisco, Texas

Middle Tennessee State University – Nashville, TN

Mooneyham Elementary – Frisco, Texas

Mt. Vernon High School – Alexandria, Virginia

Mt. Vernon Estate (Juliette Turner) George Washington Symposium – Alexandria, Virginia

Naaman Forest High School – Garland, Texas

New Horizons of Southwest Florida After School Program  – Bonita Springs, Florida

New York Film Academy – Los Angeles, California

North Texas Homeschool Families – organized by Justice of the Peace Russ Casey

North Richland Hills Homeschool Group – North Richland Hills, Texas

Northstar Academy – Arlington, Texas

Restoring Liberty – Dallas, Texas

Riverside Military Academy – Gainesville, Georgia

Rucker Elementary – Prosper, Texas

Smith’s Station High School – Smith’s Station, Alabama

SMU – College Republicans – Dallas, Texas

Sons of the American Revolution – Garland, TX

Sunnyvale Middle School – Sunnyvale, Texas

St. Vincent’s School – Bedford, Texas

Stone Brook Learning Center and Meadow Oaks Academy – Mesquite, TX

Tarrant County College – Fort Worth, Texas

Teach Them Diligently Home School Conference – Dallas, Texas

Texas A&M  – College Republicans

Texas A&M – Women’s Leadership Conference

Texas Health Presbyterian Hospital – Flower Mound, Texas

The Barack Obama Male Leadership Academy – Dallas, Texas

The Constitution Leadership Initiative – Yorktown, Virginia

University Park Elementary School – Dallas, Texas

Wayside Middle School – Fort Worth, Texas

Westlake Academy – Westlake, Texas

Wilshire Elementary – Euless, Texas

Winchester-Frederick-Clarke Republican Women – Winchester, VA

W.T. White High School – Dallas, Texas

Wayne County Schools – Smithville, Ohio

Young Academy – Southlake, Texas

Yucca Middle School – Clovis, New Mexico

 

Janine Turner & Cathy Gillespie

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Announcing Lexi Lassiter, 2015 Winner: Turner Maurice Gauntt Jr. Exemplary Citizen Award 

8Alexis Lassiter is a remarkable young woman whose high school attributes, achievements and character mirror those of Turner Maurice Gauntt, Jr.’s. Lassiter, a freshman at the University of Texas at Austin, is pursuing a degree in Mechanical Engineering in addition to completing the Business Foundations Certification program. Graduating fifth in her class from Athens High School, she achieved Distinguished Honors, becoming an Athens Public Education Foundation four-year scholar.

Through high school, she participated in numerous school and community activities. As a debate team member from grades 9-12, she participated in Policy debate, Duo Interpretation, Prose, and Extemporaneous Speaking on district, regional and state levels. She earned Texas Forensic Association (TFA) State qualification and was the highest Junior National Forensic League (NFL) point earner.

As an active member of the Athens High School Drama Department, she participated each fall in production, her characters ranging from a zombie in Maul of the Dead, to Miss Hannigan in Annie, to the Cheshire Cat in Alice in Wonderland. Each spring, she competed in the One-Act Play on district, regional, and state levels. Her department earned second place at the state competition, and she received two All-Star Cast awards on district and regional levels.

All four years of high school Lassiter was a member of Key Club and Student Council, becoming Parliamentarian of Student Council her sophomore and junior years, and Vice President her senior year in addition to serving as Key Club President. She was inducted into the National Honors Society at the end of her sophomore year, and became Community Service Officer her senior year, planning community service activities and making outside opportunities available to other members.

In addition, Lassiter participated in countless community service projects: fundraising for typhoon relief; breast cancer awareness; soup kitchen; Humane Society; collecting toys for the Fire Department; sending care packages for overseas military members; and working the city-wide “Pancake Day” with Kiwanis, for example.

Outside of school, Lassiter participated in summer musicals at the Henderson County Performing Arts Center along with being a First Presbyterian Church of Athens youth group member. She served as Youth Representative on the Youth Advisory Council.

Lassiter was also an ambassador for the Hugh O’Brian Youth Leadership seminar the summer following her sophomore year. This seminar pushes young adults toward leadership through volunteering for service projects, listening to successful motivational speakers, and having collaborative discussions where students gain more ambition to change the world. Lassiter enjoyed the seminar so much she decided to return as a Junior Facilitator the following two years and plans to continue. She is happy to log more than the required 100 hours of community service each year to catalyze the excitement and growth of each student who attends HOBY.

A strong sense of community persists in the small town of Athens where Lassiter grew up. Joining organizations that embrace and enhance such an essence has been entirely heart-warming for her.

Though Athens provided Lassiter with so much, she is excited to see what the University of Texas at Austin has in store for her and her future.

For more information about the Turner Maurice Gauntt, Jr. Exemplary Citizen Award, and to nominate a student, visit us at: https://constitutingamerica.org/the-turner-maurice-gauntt-jr-exemplary-citizen-award/


2015 Constitutional Champion Award: Congressman Bob Goodlatte

Constituting America recognizes individuals who have demonstrated their strong allegiance to upholding the very laws outlined in our U.S. Constitution and to carry forward the intentions of our Founding Fathers. This year our Constitutional Champion Award goes to Chairman of the House Judiciary Committee, Congressman Bob Goodlatte.

 

Goodlatte

In the 113th Congress, Bob Goodlatte was elected to serve as Chairman of the House Judiciary Committee, which is called the “lawyer” for the House of Representatives because of its jurisdiction over matters relating to the administration of justice in federal courts, administrative bodies, and law enforcement agencies. It also has the important responsibility and jurisdiction of the impeachment process.

An especially important role the House Judiciary Committee holds is Guardian of the U.S. Constitution. It also has jurisdiction over Amendments to the U.S. Constitution – among many other items.

For the first time in history in 2011, under the leadership of Chairman Goodlatte and the House Judiciary Committee, the House read the Constitution on the House floor. This tradition has been continued in 2013 and 2015, at the beginning of each Congress.

Chairman Goodlatte worked to go one step further on this symbolic gesture – he led the effort to require a Constitutional justification for every piece of legislation introduced – and he has continued to work to strengthen that requirement every Congress.

But Chairman Goodlatte hasn’t just symbolically defended the Constitution by having it read on the House floor and requiring members to justify legislation they introduce by citing the jurisdictional clause in the Constitution for their legislation – the Chairman has stood up for the Constitution at every opportunity – stood up to and shined a light on executive power grabs on issues ranging from the Affordable Care Act, to immigration, to the EPA. Chairman Goodlatte has utilized legislative action, the power of the purse, and even helped bring litigation against aggressive executive branch overreach in order to maintain the checks and balances and separation of powers designed by our founders and outlined in the U.S Constitution.

Chairman Goodlatte has a deep appreciation for, and most importantly, understanding of our United States Constitution and our country’s founding principles, and we could have no better defender of the U.S. Constitution than House Judiciary Chairman Bob Goodlatte: Constituting America’s 2015 Constitutional Champion!


 

Constitution Day Dinner Celebration
September 12, 2014
Las Colinas, Texas 

2014 Constitutional Champion Award: U. S. Senator Ted Cruz

The Constitutional Champion Award

TedCruzConstituting America recognizes individuals who have demonstrated their strong allegiance to upholding the very laws outlined in our U.S. Constitution and to carry forward the intentions of our Founding Fathers. This year our Constitutional Champion Award goes to Senator Ted Cruz.

In 2012, Ted Cruz was elected as the 34th U.S. Senator from Texas. A passionate fighter for limited government, economic growth, and the Constitution, Ted won a decisive victory in both the Republican primary and the general election, despite having never before been elected to office.

Propelled by tens of thousands of grassroots activists across Texas, Ted’s election has been described by the Washington Post as “the biggest upset of 2012 . . . a true grassroots victory against very long odds.”

National Review has described Ted as “a great Reaganite hope,” columnist George Will has described him as “as good as it gets,” and the National Federation of Independent Business characterized his election as “critical to the small-business owners in [Texas, and], also to protecting free enterprise across America.”

Ted’s calling to public service is inspired largely by his first-hand observation of the pursuit of freedom and opportunity in America. Ted’s mother was born in Delaware to an Irish and Italian working-class family; she became the first in her family to go to college, graduated from Rice University with a degree in mathematics, and became a pioneering computer programmer in the 1950s.

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Ted’s father was born in Cuba, fought in the revolution, and was imprisoned and tortured. He fled to Texas in 1957, penniless and not speaking a word of English. He washed dishes for 50 cents an hour, paid his way through the University of Texas, and started a small business in the oil and gas industry. Today, Ted’s father is a pastor in Dallas.

Before being elected, Ted received national acclaim as the Solicitor General of Texas, the State’s chief lawyer before the U.S. Supreme Court. Serving under Attorney General Greg Abbott, Ted was the nation’s youngest Solicitor General, the longest serving Solicitor General in Texas, and the first Hispanic Solicitor General of Texas.

In private practice in Houston, Ted spent five years as a partner at one of the nation’s largest law firms, where he led the firm’s U.S. Supreme Court and national Appellate Litigation practice. The National Law Journal has called Ted “a key voice” to whom “the [U.S. Supreme Court] Justices listen.” Ted has been named by American Lawyer magazine as one of the 50 Best Litigators under 45 in America, by the National Law Journal as one of the 50 Most Influential Minority Lawyers in America, and by Texas Lawyer as one of the 25 Greatest Texas Lawyers of the Past Quarter Century. From 2004-09, he taught U.S. Supreme Court Litigation as an Adjunct Professor of Law at the University of Texas School of Law.

Ted graduated with honors from Princeton University and with high honors from Harvard Law School. He served as a law clerk to Chief Justice William Rehnquist on the U.S. Supreme Court. He was the first Hispanic ever to clerk for the Chief Justice of the United States.

Ted and his wife Heidi live in his hometown of Houston, Texas, with their two young daughters Caroline and Catherine.

Our Military Constitutional Champions:

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This award is in recognition of our military heroes who served our country and swore under oath to serve our country and uphold the U. S. Constitution. These patriots not only served our country in the military, but they have also demonstrated exemplary service to their communities.

COL (Ret) Tom Adcock served for more than 25 years in the U. S. Army before embarking on a 17 year second career leading a team of engineers for a Washington, District of Columbia, based firm. Presently he resides in McLean, Virginia, with his wife Betty. In 1957 Tom earned his B. S. Degree from the United States Military Academy in West Point, New York, and in 1963 he earned an M. S. Degree in Electrical Engineering from the Massachusetts Institute of Technology.

His U. S. Army troop assignments included Platoon Leader in the 25th Infantry Division’s 125th Signal

Battalion in Hawaii, Division Radio Officer for the 1st Air Cavalry Division in Vietnam, Battalion Operations & Intelligence Officer of the 54th Signal Battalion in Vietnam, Commander of the 51st Signal Battalion in Korea and Commander of the 1st Signal Brigade in Georgia. For his service in Vietnam, Tom was awarded the Bronze Star and two Air Medals.

Tom’s military non-troop assignments included teaching advanced Electrical Engineering courses at West Point, Deputy Chief of the Switching Division and Executive Officer for the Defense Communications Engineering Office of the Defense Communications Agency, Chief of Tactical Satellites, Satellite Branch of J-6 in the Office of the Joint Chiefs of Staff, Chief of the Satellite Branch of the NATO Integrated Communications System Management Agency, Chief of the Long Range Plans Branch of the NATO Integrated Communications System Management Agency and the U. S. Army’s Training & Doctrine Command’s System Manager for Tactical Automatic Switching.

After retiring from the Army in 1982, Tom became the Director of Engineering, and three years later a partner, in the legal & technology firm now known as Lukas, Nace, Gutierrez & Sachs with site and system responsibilities for cellular, microwave, paging, radiotelephone and specialized mobile radio. Tom coordinated and supervised the design and construction of the initial cellular systems in more than 10 percent of the 734 U. S. cellular markets. While severing in this capacity, Tom was a licensed Professional Engineer (Electrical Engineering) and a Senior Member of the Institute of Electrical and Electronic Engineers.

The results of Tom’s research while at MIT 1961 – 1963, entitled “Error Statistics with Optimum Pulse Position Modulation,” is Reference 1 in the text “Principles of Communication Engineering” by John M. Wozencraft and Irwin Mark Jacobs. Tom’s publications include “Rolling Out PCS Service,” America’s Network, August 1995; “PCS Q&A,” Cellular Business, May 1994; “Special RSA Highway Cells,” Cellular Business, September 1988; “New Rules for Microwave Radio,” Mobile Communications Business, November 1987; “Cellular Business Expanding Fast,” Washington Technology, October 1987; “An Introduction to RSAs,” Cellular Business, January 1987; and “RSA Design and Construction,” Cellular Business, January 1987.

COLStanCassCOL (Ret.) Stan Cass is a retired career Army officer and operates Cass Farms Co. at Briggsdale with his son, Randy, and his family. He attended Colorado A&M for two years before going to the U.S. Military Academy at West Point, NY. He graduated from there in 1957 and later received a BS and MS in Meteorology from Texas A&M. He also attended numerous schools as an Army aviator, including the Army Project Management School, Command and General Staff College, and Army War College.

He was decorated for both valorous and meritorious service. He received the Legion of Merit, with Oak Leaf Cluster; the Distinguished Flying Cross, with Oak Leaf Cluster; the Bronze Star Medal, with Oak Leaf Cluster; the Meritorious Service Medal, and twenty-six Air Medals. He was a Master Army Aviator with approximately 6,000 hours of flying time, in both helicopters and fixed wing aircraft.

Prior to retirement from the Army in 1986, with 29+ years of service, he had most recently been the Project Manager for development of the Hellfire Missile System, a multi-service weapon now extensively used in Iraq, etc. Prior to that he had numerous tours in the States including Ft. Rucker Aviation Center and seven years in the Pentagon; three years in France and Germany; and two tours in Vietnam, the last being Commander of the 11th Combat Aviation Group.

Since retirement he has lived in Ault, CO, and now Eaton, with his wife, and has been farming/ranching at Briggsdale. He also has married daughters living in Florida, Pennsylvania and Massachusetts. As an active Mason and Shriner, he is a member of Occidental Lodge #20, AF&AM, and is Past Master three times. He is a life member of the VFW; a member of the American Legion; and is past President of the Northern Colorado Military Officers Association. As a co-chairman of the Weld County Veterans Memorial Committee, he played a significant role in getting a Veterans Memorial built in Greeley, that has become a standard for other cities/towns.

He served a total of seven years as a Trustee and Mayor Pro-Tem of Ault, and almost three years as Mayor; has been Secretary/Treasurer and Vice President of the West Greeley Conservation District Board for twenty four years; was president of Colorado Tillage Association; and was president of Ault Sertoma as well as District Governor of a three state area. He recently served as chairman of the Board of the Community Foundation serving Greeley and Weld County, and is Vice President of Legacy Land Trust in Fort Collins. In late 2011 he was inducted into the Colorado Conservation Hall of Fame. In 2008, he founded the Honor Flight of Northern Colorado that has so far enabled over 1,600 WWII, Korea, and Vietnam Veterans to see their Memorials in Washington, D.C.

BobSmithRear Adm. (USN Ret.) Bob Smith earned a Masters in Aerospace Engineering and is a decorated Combat Fighter Pilot with 132 missions flown in Korea, as well as being a candidate for the Apollo Program. His design and production experience include being the Chief Project Engineer for the F-8 Crusader Airplane Programs; and Program Director of A-7 Corsair II airplanes [both for LTV (formerly Chance Vought) Company]; and Project Director of the B-2 Bomber program.

Bob is also well known in the Electric Vehicle EV industry, having worked with GM, Ford, and the Electric Vehicle of America Association. Bob is currently the Chairman of the Board of Directors of EV Tech Inc. and his experience includes, Vice President-Engineering and Marketing for Turbomeco Engine Corporation; Vice President-Engineering for Electrical Vehicle Power, and Executive Director of the Central Electric Power Coalition, a non- profit made up of electric utilities, Universities e.g. Texas A&M and Oklahoma University, and commercial companies, that promote Electric Vehicles.

 

MauriceGauntt

The Turner Maurice Gauntt, Jr. Exemplary Citizen Award

This $4,540 scholarship is awarded annually by an esteemed panel of judges through Constituting America. The scholarship is named for Turner Maurice Gauntt, Jr. the father of Constituting America’s Founder, Janine Turner. Turner Maurice “Tex” Gauntt, Jr. was born in Dallas, TX, the son of Turner Maurice Gauntt, Sr. and Marguerite McKinzie Gauntt. He graduated from Athens High School where he excelled academically and athletically. His accomplishments included National Honor Society, President of the Key Club, Captain of All-District Football and Basketball teams, Captain of the Athletic Assciation, Babe Ruth Sportsmanship Award, President of the Senior Class, and Most Handsome. He was considered one of Texas’ best high school quarterbacks. His outstanding record led to an appointment to West Point by Congressman John Dowdy of the 7th District of Texas.

During cow year at West Point, Tex roomed with Bruce Turnbull and “Andy” Andrews. Having attended college for two years and the USMA Preparatory School before joining our class, Andy excelled at academics. He was famous for retiring early and then maxing the next day’s classes! After lights out, Tex and Bruce studied by flashlights under their Red Boys. Bruce recalls that at the reveille cannon blast, Andy would shoot out of bed, switch on the sink light, and sing as he shaved. Meanwhile Tex and Bruce yearned for peace and quiet. A trip to Hoffman’s Hardware in Highland Falls resulted in the purchase of a camera flash bulb which was screwed into the sink light fixture. The next morning when Andy hit the light switch, the flash bulb exploded in a blinding flash. Andy reeled backwards crashing over chairs and desks. So ended Andy’s early morning antics.

Firstie-year Tex was selected as Company Commander of I-1. This came as no surprise to those who knew him. He was greatly respected and admired. His leadership qualities were evident from his first days at West Point. Under his leadership the company was awarded the Trill Prize for Best Company and two drill streamers.

Tex roomed with Jack Apperson, the Company Executive Officer, and Dana Mead, the Battalion Commander. Jack recalls Tex doing vertical pushups by standing on his hands, feet straight up, back against the wall, pushing up from the floor.

Before Graduation Parade, rumors circulated about our class running, instead of marching, to join the reviewing party. In 1957 the reviewing party included General Maxwell D. Taylor ’22, then Chief of Staff, United States Army, in addition to the Superintendent and the Commandant of Cadets. At the command for the graduating class to march forward, a rebel yell erupted from H-1’s Rabble Rousing Carl Burgdorf. He pulled out a hidden Confederate Flag and took of running like a jack rabbit. Despite I-1’s proximity to running companies on both flanks. I-1’s firsties marched on, not missing a drum bet, mainly because their leader, Tex, was having none of the rabble running.

Instead he led the company with back straight, chin set, and eyes forward. Both Jack Apperson and Tom Adcock recall Tex turning his head slightly to his right and commanding. “Don’t run, don’t run!” Of the 24 cadet companies all but four ran. The runners soon learned that they would spend major parts of their final cadet days confined to their rooms.

Tex was commissioned in the Air Force. His first training was at Hondo Air Base. While there he met Janice Agee who was attending Trinity University in San Antonio. They were married on Dec. 22, 1957. Tex was assigned to the Strategic Air Command and was selected to pilot the revolutionary, delta-winged B-58 Hustler. This bomber was capable of flying at Mach 2 (twice the speed of sound). B-58 crews were elite, hand-picked from other SAC bomber squadrons. Tex became SAC’s youngest B-58 squadron commander.

In 1965 an in-flight emergency occurred on Tex’s B-58 as an engine caught fire during a training flight over Arkansas. He ordered his two crewmen to bail out and received permission to land his aircraft. He was able to land his B-58 safely despite the engine fire. Unfortunately a heart arrhythmia was found during a post-incident physical exam. He was told he could never return to Air Force flight status, which was a huge disappointment.

Tex telephoned close friend and classmate Stan Cass to transfer to Army Aviation, but before the transfer began, Braniff Airlines made Tex an offer too good to refuse. The couple returned to Texas where Tex joined Braniff and in time moved into the captain’s seat. His career with Braniff was a grand one until Braniff went out of business in 1992. In keeping with his love of flying, Tex became an instructor with High Power Aviation in Grand Prairie until 2012. In 2006 he received the Wright Brothers “Master Pilot” Award from the Federal Aviation Administration. He also flew for Conoco Phillips, flying to and from the north shore of Alaska. In 2012 he was presented an award for Leadership, Professionalism, and Exemplary Contribution.

Tex also became a Real Estate Broker and opened his first office with wife Janice in 1968. He created Texas’ first real-estate franchise. This award-winning company later became Century 21 Lake Country at Eagle Mountain Lake. It and a second office in Colleyville are now owned by son Tim.

Tex’s love for flying was exceeded only by his love for his family. He was proud of them and almost any conversation quickly turned to his wife, children, and grandchildren, and their many successes. He was survived by wife Janice, his son Tim and Tim’s wife Roslyn Gauntt, his daughter, actress Janine Turner (Gauntt), and grandchil- dren Tiffany Gauntt, Turner M. Gauntt IV, Bobby Gauntt, and Juliette Turner. His family loved and adored him and wishes him blue skies and tailwinds forever.

Turner Gauntt always believed that we are blessed to live as citizens of the United States. He loved our country and was willing to sacrifice for her. He was an inspiration by encouraging others to study history, to value lessons learned from both history and great patriots, and to be of service to others. He valued our country’s founding principles and our founding fathers’ wisdom. This award recognizes a recent high school graduate whose character mirrors these values.

This year, our Exemplary Citizen Award winner is Austin Dobbs, a freshman at Baylor University.

AustinDobbsAustin Dobbs is a remarkable young man whose high school attributes, achieve ments and character mirror those of Turner Maurice Gauntt, Jr.’s. Dobbs was Valedictorian of his graduating class from Quitman High School in Quitman, Texas with a 5.4 grade point average. He was Captain of the football team and Captain of the track team. He received All-District Honors for his positions as wide receiver and defensive back and was named First Team Academic All-State as well as serving as Treasurer and Vice President of the Fellowship of Christian Athletes. Academically, in addition to being Valedictorian, he was President of the National Honor Society, President of the Debate Club, Student Council Vice-President and Senior Class President. He was a State Qualifying Debater for his junior and senior seasons, deemed as one of the top five debaters in the state of Texas and was the State Silver Gavel winner as 2nd in the State of Texas 2013. He received countless academic and character awards within his community. His church and community ser- vice is astonishing with 775 hours served, which includes Program Director of DASH – Drugs, Alcohol, Safety, and Health.

Dobbs is a freshman at Baylor University as a pre-law student pursuing political science as his major. After completion of his undergraduate degree, he anticipates joining what he believes to be one of the greatest branches of our military – the JAG program – because, in Austin Dobb’s words, “everything in this world must be earned and I am intrinsically inclined to repay the world for the countless opportunities with which I have been presented.” He lives by his mother’s motto “ To whom much is given, much is required”. Constituting America, Janine Turner (Gauntt) and the Gauntt Family are proud to present Austin Dobbs with this award in Turner Maurice Gauntt, Jr.’s name.

AustinWithColCass

Constituting America’s First Annual Harold Simmons Award for Excellence in Constitutional Teaching

HaroldSimmonsHarold Simmons was a remarkable, generous, and gifted man who exemplified the American Dream. Mr. Simmons’ first job was as an investigator for the U.S. Civil Service Commission, then as an Assistant Bank Examiner at the Federal Deposit Insurance Corporation and an assistant loan officer at Republic National Bank. After five years, he decided he would rather work for himself. So at age 29, Harold became an entrepreneur when he purchased a small drugstore near SMU in Dallas. He ultimately built a chain of 100 drugstores. His combina- tion of value investing philosophy and conservative financial discipline, combined to create a diversified portfolio that grew substantially over the course of his career. Mr. Simmons was

actively involved in philanthropy with his wife, Annette, and served on various honorary and executive boards. Mr. Simmons also received several local awards for his unwavering support and involvement with Dallas- based charities. Harold Simmons was a man of few words but giant actions. He once said, “Life has been good to me, and I want to be good to life.” This philosophy led to the establishment of The Harold Simmons Foundation in 1988. The Foundation focuses on education, health care, social welfare, civic improvement, and the arts.

Constituting America’s First Annual Harold Simmons Award for Excellence in Constitutional Teaching recognizes a teacher who has demonstrated leadership in her field and innovative ways to educate her students, in the spirit of Harold Simmons who believed that quality education was essential to success in life.

BeverlyZearleyOur first annual teacher award winner is Beverly Zearley. Beverly is an enthusiastic elementary school music teacher whose passion is to instill a love for the United States along with a love for music in her students. Believing she was born with patriotism, as a child Beverly would stop whatever she was doing and put her hand over her heart whenever she heard the National Anthem. She has integrated teaching the National Anthem and the Constitution to her 1st – 5th graders into her elementary vocal music curriculum. Because of her dedication, Paramount Terrace Elementary has been a “National Anthem Project All Star School” from 2006 to the present. Beverly organizes an annual program where students and parents gather around the flagpole so students can share what they have learned about the National Anthem and the Constitution.

 

It is no surprise that in 2012 Beverly was selected to represent her campus as Teacher of the Year and was chosen as a finalist for Amarillo ISD’s Teacher of the Year award. With 23 years of teaching experience, Beverly loves keeping in touch with former students and is currently teaching the children of two former students. Beverly maintains a bulletin board each year in the hallway outside her classroom where she posts newspaper clippings and articles about ex-Paramount Terrace Elementary students. In 2010, Beverly helped organize “Madison’s Bash,” a fundraising event to help a former student battling a rare throat cancer, and Beverly continues to help fundraise for childhood cancer in memory of Madison.

BeverlyZearley

Beverly loves traveling, especially when it involves camping with her family in New Mexico and Colorado. She has traveled to Chiang Mai, Thailand as an adult sponsor for a mission trip, and in 2010 she had the privilege to travel to Spain as a sponsor with the Amarillo Girl Concert Choir. Beverly served on the Board of Directors for the Amarillo Youth Choir from 2007-2012. Beverly has attended the same church all of her life and enjoys teaching middle school girls and singing on the Praise Team and in the choir. She has served on The Church at Quail Creek’s women’s ministry since 2010 and has taught Sunday School for sixteen years. Beverly is a graduate of West Texas A & M University. She has been married to Vernon for 24 years and is the proud mother of two daughters, Ashleigh, age 20 and Andrea, age 16.

 

We wish to thank our very generous sponsors:

Host Committee:

Amway

Signer:

AT&T Hodges Capital Holly and Phillip Huffines Babes Chicken Dinner House Restaurants and the Vinyard Family

Patriot:

Harold Collum Denise and David Fuller Buck Howard Bruce Leadbetter Lockheed Martin Mary Kay Cosmetics Darlene and Ron Mead Linda and Bob Moak Elise and Jeff Pistor Dennis Stephens/Ben Leman

We wish to thank the following for their generous donation of goods or services:

Babes Chicken Dinner House Restaurants – Dinner Discounts (www.BabesChicken.com) Zonderkidz/Blink Publishing – “Our Constitution Rocks!” by Juliette Turner Dunham Boooks – “A Little Bit Vulnerable” by Janine Turner Kroger Company – Beer, Wine and Flowers (www.Kroger.com)

Mary Kay Cosmetics – Gift Bags (www.MaryKay.com) Don Nabb and DRN Productions – VIP Reception (www.DRNShowBusiness.com) The 440 Alliance Cello Quartet – Musical Performance (www.The440Alliance.com) Foundation Sound and Video – Video, Lighting, and Sound (www.Foundation-Studios.com)

Honorary Event Co-Chairs:

George P. Bush William S. Davis COL (USA Ret) Thomas G. Adcock COL (USA Ret) Stan Cass RADM Robert L. Smith, USN (Ret.). The Honorable John Cornyn The Honorable Joe Barton The Honorable Michael Burgess The Honorable Bill Flores The Honorable Sam Johnson The Honorable Steve Stockman The Honorable Ken Paxton The Honorable Patrick Fallon The Honorable Jeff Leach The Honorable Scott Sanford State Rep-Elect Matt Shaheen The Honorable Patricia “Pat” Hardy The Honorable Geraldine “Tincy” Miller

Event Co-Chairs:

Harold Collum Denise and David Fuller Janice Gauntt Freddie and Don Hodges Holly and Phillip Huffines Judi and Gary Martin Kit and Charlie Moncrief Elise and Jeff Pistor Jocelyn White The Vinyard Family(Babes Chicken Dinner House Restaurants)

*Listing as of September 8, 2014

Robin Jackson Photography: CA Store: Sherry Watters Dunham Boooks Zonderkidz/Blink

Pam Barrett

Janine Turner

Frankie V’s Kitchen

Cher McCoy

Jerriann Massey

Cathy Gillespie

Janine Turner

Amanda Hughes

Janine Turner

Mary Helen

Jerriann Massey

Richard Hopkins (Bedford Gold and Silver)

The Brick Saloon, Roslyn, WA. (Diner from Where Northern Exposure)

Laurie Cockrell Holly Haas-Black Amazing Lash Studio Janine Turner Constituting America Janine Turner Cathy Thorogood

*Listing as of September 8, 2014

$500 Portrait Package & display board Armful of Gifts 2 Hand Painted Wine Glasses $80 value “Holding Her Head High”, Autographed Juliette Turner, “Our Presidents Rock”

2 Constitution Quest Games & display board Large Wood Cross from Janine’s Ranch Gift Basket 2 Hours of Animal Training / Coaching Patriotic Quilt

1776 Movie and Illustrated Book Duo Northern Exposure Complete Set DVDs Patriotic Pillow Special Occasion Call & Display Board Animal Communication & Display Board 2 nights at Hidden Star Retreat for 12 Guests + Amenities Loose gem. 19k Ametrine

Tickets, T shirt & Cap

3 Books Golf Lessons – Golf Links Full Set of Eye Lash Extensions Creative Works (Books, Moves, CD’s, DVD’s etc) Complete Set of CA’s Documentaries and 90 Day Studies Keynote Speaker on Behalf of Constituting America Cake

SEPT. 2014 GALA AUCTION DONATIONS:

Marilyn Hoffman

Claffey Pools Fort Worth Opera TinasPilotShop.com / MarcAir TalionFirearms.com, LLC President George H. W. Bush Doro Bush Koch *Listing as of September 8, 2014

Horse and a 7 night trip to Kentucky for the races with deluxe acomodations in a private villa in the Griffin Gate Resort with a spa package, a dining package and a golf package during the Keeneland race season 2014-15.

Poolside Basket Ball Game Tickets for 2 to Performance of Hamlet Flight Training & Flight Bag AR-15 Range Time / Instruction with Janine Turner Presidential Socks “My Father, My President”, by Doro Bush Koch

For More Information:

Mail:

Constituting America Janine Turner & Cathy Gillespie P.O. Box 1988 Colleyville, Texas 76034

Phone: 1-888-YES-0917

E-Mail:

ConstitutingAmerica1787@yahoo.com – General Inquiries WeThePeople917@yahoo.com – Contest Inquiries 

SAVE THE DATE: SEPTEMBER 17, 2014 FOR CONSTITUTION DAY!

ATTN: TEACHERS OF BAND, FILM, ENGLISH, DRAMA, HISTORY, DEBATE & SPEECH! We want to LAUNCH CAREERS in FILM, MUSIC, JOURNALISM & GOVT.SERVICE! with non-partisan Constitutional Fortitude

Constituting America’s 2014 We the Future Contest entry deadline has been extended to September 17, 2014! There is still time for your K-12 students (and any college, graduate or law school students, as well as adults & seniors!) to win prizes, scholarships, and exciting mentoring trips through this fun and engaging contest that helps students learn about the U.S. Constitution in a non-partisan way. Simply visit http://www.constitutingamerica.org/downloads.php to read the rules and information, and share with your students.

High school winners receive $1,000 prizes to be used for their college education. Younger Students win gift cards, and all win national exposure on our website! Song winners will win a mentoring trip to Nashville where they will get their music video produced & song professionally recorded! Short film winners travel to Hollywood to meet actors such as Gary Sinise (Forrest Gump/CSI New York) & others in the industry and watch a TV show or movie being filmed, and PSA, essay and speech winners travel to Washington, DC where Brit Hume, Bret Baier and other DC insiders will spend time with them as mentors! All mentoring trip participants will dine with a constitutional scholar!

Did you know…All schools receiving federal funds are required to hold an educational program on the U.S. Constitution on September 17th each year?

Mark your calendars for September 17, 2014: Constitution Day!!
To help you fulfill this requirement, Constituting America is offering two exciting programs:

1. Book a Q&A “Skype Session” with one of our student contest winners. Kids teaching kids about the U.S. Constitution! Go to this link: http://www.constitutingamerica.org/winners2013.php to view short 2 minute clips of our winners & their winning works! Choose one of our winners to spend time with your class, in a Q&A Skype session (tailored in length and content to your lesson plan and goals) on the Constitution and it’s relevancy today!

2. Exciting, NEW Interactive School Speaker Series for 2014. Interactive Constitution: LIVE is an interactive speaker series featuring representatives of the federal executive, legislative & judicial branches in the fall, and state and local officials in the spring! The branches of government outlined in the Constitution will come alive for your students through this non-partisan, educational, interactive series! Book your school now! Email: constitutingamerica@yahoo.com to book and for more information.

We founded Constituting America because the arts are so pivotal in our lives. Our goal is to utilize the culture and multi-media outreach such as music, film, internet and social media to reach, educate, and inform America’s adults and students about the importance of the U.S. Constitution and the foundation it sets forth regarding our freedoms and rights. Participating in the We the Future contest will help your students do just that. We hope you will spread the word re: the availability of these free educational resources.

Please contact Cathy Gillespie at (202) 255-0101 or email constitutingamerica@yahoo.com for more info!

Sincerely,

Janine Turner
Actress, Northern Exposure
Founder & Co-Chair

Cathy Gillespie
Co-Chair

Constituting America’s Mission

Constituting America’s mission is to utilize the culture and multi-media outreach such as music, film, internet, and social media to reach, educate, and inform America’s adults and students about the importance of the U.S. Constitution and the foundation it sets forth regarding our freedoms and rights. Our multi-tiered approach features a contest for kids, academic forums with Constitutional Scholars, School Speaking Initiative, Patriot Clubs, and National Youth Director Juliette Turner’s book, Our Constitution Rocks, and forthcoming September 2014, Our Presidents Rock.

We are the only organization that utilizes the arts & culture to inspire Americans of all ages to learn about the U.S. Constitution

Our Programs

We the Future Contest – a nationwide contest where students from kindergarten through law school and adults and seniors submit original songs, short films, public service announcements, speeches, drawings, essays, and poems about what the Constitution means to them. Entries are judged by an esteemed panel and through social media, and winners in each category are awarded prizes including $1,000 for high school winners, $2,000 for college, law & grad school winners, gift cards for younger winners, mentoring trips and national publicity. (This year’s entries are due August 15, 2014 – go to http://www.constitutingamerica.org/downloads.php for more rules and information.)

EXCITING NEW INTERACTIVE SCHOOL SPEAKER SERIES FOR 2014: An interactive school speaker series featuring representatives of the federal executive, legislative & judicial branches in the fall, and state and local officials in the spring! The branches of government outlined in the Constitution will come alive for your students through this non-partisan, educational, interactive series! Book your school now! Email: constitutingamerica@yahoo.com for more information.

Our 90-Day Studies of founding documents: The Relevancy of the Federalist Papers; The U.S. Constitution; The Amendments and the Classics That Inspired the Constitution are archived and searchable on our website. Explore original documents as well as 530 essays by 85 constitutional scholars: essays on every Federalist Paper; clauses and sections of the U.S. Constitution and the Amendments, and the classic works spanning centuries that shaped our U.S. Constitution. Access the search box and drop down menu from the front page of our website: constitutingamerica.org

Scholar Speaker Series – NEW for 2014: A Speaker Series featuring our Constitutional Scholars from our 90 Day Studies! Stay tuned for details!

Book a Q&A Skype Session with Our Winners – What is more powerful and entertaining than kids teaching kids about the U.S. Constitution? We will schedule one of our talented contest winners to “skype” into your classroom on a mutually agreeable day and time to share their winning work with your class, in a Q&A session on the U.S. Constitution and its relevancy today. The session can be tailored in length and content to your lesson plan and goals.

Patriot Clubs – organizations we help form at the local level to encourage people of all ages to learn about the Constitution: http://www.constitutingamerica.org/patriotstart.php We have over 30 active Patriot Clubs across the Nation, both in schools, and in communities.

DOWNLOAD THE IMPACT STATEMENT HERE

OUR MISSION

Constituting America’s mission is to utilize the culture and multi-media outreach such as

music, film, internet, and social media to reach, educate and inform America’s adults and students about the importance of the U.S. Constitution and the foundation it sets forth regarding our freedoms and rights.

Our multi-tiered approach features a contest for kids, academic forums with Constitutional Scholars, the George Washington – We Are All Americans School Speaking Program, and Patriot Clubs. National Youth Director Juliette Turner engages youth across America with her book, Our Constitution Rocks, speeches, videos and media interviews!

We are the only organization that utilizes the arts and culture to inspire adults and students to learn about the U.S. Constitution!

OUR GOALS

  • ENGAGE ADULTS AND YOUTH THROUGH MEDIA THEY ENJOY & UTILIZE EVERY DAY
  • MAKE IT “COOL” TO CARE ABOUT THE CONSTITUTION BY HAVING KIDS (OUR WINNERS) TEACH KIDS AND PROMOTE OUR FOUNDING VALUES
  • PROVIDE TEACHERS WITH   DOCUMENTARIES, MUSIC VIDEOS, AND CLIPS: RESOURCES ABOUT KIDS MADE BY KIDS
  • HELP EDUCATE PARENTS, WHO ARE THEIR CHILDREN’S BEST TEACHERS, WITH CONSTITUTIONALLY ACADEMIC PAPERS, MP3’S AND VIDEOS

OUR IMPACT

1,199,448 Website Page Views To Date!

DOWNLOAD THE IMPACT STATEMENT HERE

Positively impacting the Culture

We The Future Contest

  • Over 1200 Song, Short Film, PSA, Artwork, Poetry, Speech, Essay Contest Entries from 47 States
  • 51 Contest Winners from 22 States
  • $48,000 in scholarship funds awarded
  • 4 trips to Philadelphia with 16 kids plus a parent for 3 days of history, education
  • & performances of their winning works
  • 4 private tours of Independence Hall
  • 4 performances at the National Constitution Center
  • 223,959 Hits on Youtube & Vimeo from our Contest Entries, Documentaries & Videos
  • Over 20,000 Documentaries distributed to schools across the country

In our Winners’ Words

  • “The whole experience has been amazing to me because I have been able to learn more about the Constitution than I could in just the regular classroom setting. I hope more people participate in this because even if you don’t get chosen, you learn a lot just by trying to enter the contest,” Kenthia Farmer, Tennessee, Best College Short Film Winner.
  • “The whole trip’s been incredible and it’s only been a day,” Annie Nirschel, Best High School Song Winner.
  • “I don’t want to leave. I am sad. I am so sad. I don’t want to get on that plane! I’m hoping I miss my flight so I can stay an extra day. I loved it. Everything was great!  Yesterday (the first day of the trip) was one of the best days of my life. That was a good day. Everything… It was awesome!” Colton Hinderliter, Best High School Short Film Winner.

DOWNLOAD THE IMPACT STATEMENT HERE

Winner Promotions

Our winners’ Public Service Announcements are playing on the following Television Stations:

  • Amarillo (KAMR)

  • Austin (KXAN)
  • El Paso (KTSM)
  • El Paso (KVIA)
  • College Station (KAGS)
  • Waco (KWKT)
  • El Paso (KFOX)
  • Houston (KHOU)
  • El Paso (KDBC)

We submit our winners’ films to film festivals

In 2014 The Palm Beach International Film Festival featured Chasity Cagle’s Winning film & the Tupelo Film Festival is featured Constituting America’s RoadTrip Documentary

We have also submitted our winners’ films to over 50 festivals including:

  • Seattle True Independent Film Festival (STIFF)
  • Teen Truth Film Festival
  • Teen Truth Film Festival
  • Atlanta Film Festival

Our winners have performed at:

  • The National Constitution Center (four years in a row)
  • In front of Independence Hall
  • On the Mike Huckabee radio show
  • On Nashville’s WSM, the station of the Grand Ole Opry &
  • Attended parties at the home of country musician, John Rich
  • At the U.S. Congressional Baseball Game
  • At the Susan B. Anthony Gala in Washington, DC
  • At the Colorado Freedom Festival
  • At the Mansfield, Ohio Central Park Gazebo event
  • At Rotary Events in several states
  • At our Dallas & Stamford Connecticut Constituting America Premieres
  • At our Constituting America Constitutional Champion Gala
  • At a Nashville event featuring female Governors & State Legislators from across the country
  • New Horizons of Southwest Florida (helping at-risk children & teens)

In addition, our winners have

  • Appeared on Fox & Friends
  • Spoken to their schools & school board
  • Participated in Veterans Day Programs
  • Manned booths at school district festivals
  • Recorded podcasts for our 90 Day Studies
  • Been featured in radio, magazine and newspaper stories across the country
  • In our Winners’ words:
    • “Being a musician, any time I can perform in front of an audience, it’s a great experience professionally and Constituting America has given me great audiences to perform for. Constituting America has completely opened up doors. Here in Nashville I got to perform my winning song for a group of female legislators.  Jo Dee Messina, a country star, was there as well some faculty members from Bellmont.  I also got to sing the national anthem for the Congressional Baseball Game. So, I was able to perform for some leaders in the government as well as leaders in the music industry. That was amazing,” Kori Caswell, Missouri, Best College Song Winner
    • “After the trip, actually, Governor Mike Huckabee invited me to appear on his show. Appearing on national television made me feel like I could do anything. It’s experiences like that that make me fall in love with performing and with what I do. Being a part of Constituting America inspired and has continued to inspire me to chase after my dreams and to, in turn, set an example for my generation in the hope that they will dothe same (with the knowledge of all their rights and freedoms here in America)!” Emily Keener, Ohio, Best Middle School Song Winner
    •  “Working with Janine Turner and seeing her passion and energy for the Constitution really inspired me to make a difference in the world and it definitely influenced my career goals,” Natalie Cuzmenco, North Carolina, Best College Short Film Winner.

DOWNLOAD THE IMPACT STATEMENT HERE

Resources for Schools and families

  • The George Washington “We Are All Americans” Speakers’ Initiative Constituting America Founder & Co-Chair Janine has spoken to thousands of students, adults and seniors at schools, community events and senior citizens centers in Texas and across the country.
  • Our Constitution Rocks Book Distribution to SchoolsThis summer, 2014, we are providing over 1400 copies of Constituting America National Youth Director, Juliette Turner’s book, Our Constitution Rocks, to teachers who have pledged to use the book in their classrooms.  Schools are located primarily in Texas in such areas as: Mission, Laredo, Humble, Presidio, Amarillo, Live Oak, El Paso & Liberty. We are also shipping to a Philadelphia school & Virginia Beach school!
  • We the People 9.17 DocumentariesProduced and directed three documentaries available for viewing or download on the Constituting America website and mailed in hardcopy to schools across the country.
    • 20,000 copies provided to schools
    • Over 90,000 plays on Vimeo & Youtube
    • Premiered in movie theaters in Dallas, Texas & Stamford, Connecticut
    • In the Teachers’ words:
      •  “Please send (9) additional copies of “The Constitution-Reality Show Style” to: Everman Independent School District,” Thank you, Marci Jones. “Could I please have a copy of the 40 minute “We the People 9.17 Documentary: The Constitution, Reality Style.” I would like to show it to my second grade students,” Thank You, Kathy Williams.
      •  “I would like a copy of the DVD, “We the People 9.17 Documentary: The Constitution, Reality show Style”. I am the Principal of a School of Choice in Marble Falls, Texas. Thank you for helping us with a Constitution program and the opportunity for some of our students to check into this years contest,” Peggy Little, Principal, FCHS.

National Youth Director Juliette Turner’s Youth Outreach

  • Juliette’s best-selling book, Our Constitution Rocks, hit the shelves in August 2012 and is already in its second printing with over 20,000 copies sold!
  • Thanks to the generosity of Mr. Bill Davis and Congressman Michael McCaul, one copy distributed to every member of Congress prior to Constitution Day 9-17-13. Mr. Davis has also made over 1,000 copies of the book available to students and teachers involved in the Bill of Rights Institute programs and training.
  • Over 800 copies of “Our Constitution Rocks,” have been given away to students as finalist prizes in our “We The Future” contest!
  • Juliette is the youngest author ever to address Mt. Vernon, at the George Washington Symposium & Juliette was one of four featured authors at the 2013 Dallas Celebration of Reading (along with Senator Kay Bailey Hutchison, Mark Shriver & ABC’s Byron Pitts.
  • Juliette’s Constituting America videos have over 50,000 views on YouTube & Vimeo

We Attend Educator Conferences Across the Country to Distribute Our Resources Directly to Teachers

  • Since 2011 Constituting America has attended 24 different educator conferences & grassroots conventions in 12 different states, adding 6,274 educators to our mailing list from these conventions.

DOWNLOAD THE IMPACT STATEMENT HERE

For Adults

Archives & Blog – Annual 90 Day Studies

  • 2013 – The Classics That Inspired the Constitution & The Challenges It Faces Today
  • 2012 – Analyzing The Amendments
  • 2011 – The Constitution
  • 2010 – Relevancy of the Federalist Papers
    • 523 Essays from 85 Constitutional Scholars
    • 2,022 comments from Citizens across the Nation
    • 1,664 plays of 2013 90 Day Study Essays on MP3 (Soundcloud)
    • 8,138 plays of 2012 90 Day Study Videos on Vimeo
    • In the Study Participants’ words:
      • “I was so excited to hear about this educational 90 day project. I’ve been with you since the first one with the Federalist Papers and I have learned SO much! Thank you, Thank you, for this wonderful project and opportunity to learn even more about what the history of our Great Nation. I tell everyone I know about this site. Blessing to you both, Janine and Cathie for this, and I can’t wait to come here every day to learn more,” Barb.
      • “Janine & Cathy, thanks for continuing this important educational program. I’m looking forward to deepening my understanding our history and, hopefully, being able to pass on what I learn to others,” Ron.
      • “At the end of another chapter in your valuable work, those of us who have followed Constituting America from the beginning hope that you will continue to provide instructional material for those of us who were not properly instructed in school. Personally, I hope that you can develop [sic] a method of improving the classroom material available to teacher[s] in our school system. May God Bless you,” Jim.

 

  • Our We The People 9.17 Contest is open to adults! Last year, Constituting America launched a new category for adults 65+ to participate in our “We The Future” contest.
    • This year’s best short film winner in the adult category interviewed 55 friends about the U.S. Constitution and started a dialogue that is still ongoing
    • Our fist senior winner is an active 82 year-old from Colorado!
    • American House Senior Living Communities sponsored the Senior Essay portion of our contest, and invited all their residents and the American Association of Mature Citizens (AMAC) promoted our contest to thousands of their members

For All Ages

Patriot Clubs

20 Active Patriot Clubs Across the Nation

  • “I would think that our family always knew about the Constitution and the Bill of Rights, but in studying it in depth has made a huge difference for all of us and our appreciation for the sacrifices and increased our love of this country even more. My biggest takeaway would be the inspiration to carry it to the next level which included homeschooling Halley for two years and steeped in a US history curriculum. It’s been a fun ride. Thank you CA,” Linda Moak, Colorado, Patriot Club Leader.

Consult Our Scholars

  • 85 Constitutional Scholars published on our website available for interviews, questions and speeches

Constituting America Utilizes Social Media to communicate with teachers, parents, citizens and students: 1,752 Twitter followers; 63,714 Facebook fans

DOWNLOAD THE IMPACT STATEMENT HERE

THE IMPACT CONTINUES

  • “College age is the age where a lot of people are voting for the first time… A lot of young people really don’t understand why they are voting or what they are voting for. They just know the Presidential election and there is a lot more to it. I think you have to understand the basic Constitution first before you can just go ahead and just start voting for people, because I think we just vote in our age group and not necessarily know exactly what it is that we are voting for, voting about,”
    ~Kenthia Farmer, Tennessee, Best College Short Film Winner.
  • “I’ve had so much support from Cathy and Janine at Constituting America. They really are invested in the kids that go through this program,”
    ~ Kori Caswell, Missouri, Best College Song Winner, 2012.
  • “The scholarship I received from Constituting America is allowing me to study abroad this coming spring.  Travelling abroad will be an opportunity to see the United States from a global perspective– a perspective which I believe is vital to a full understanding of our Constitution,”
    ~ Hannah Leffingwell, Colorado, Best High School Essay Winner.
  • “Since winning the contest, I have gone on to do a number of other things with CA. One of the biggest things was recording three podcasts for their 90 essays in 90 days.  I got to talk to a Cicero scholar over the phone, and that was really interesting because half the time he was speaking in Italian, and I had to ask him a lot of different questions about Italian words and how to say them. So the whole experience was learning experience and a fun one as well.  Then I’ve also gone on to do Janine Turner’s radio show a couple of times and that’s always a lot of fun,”
    ~ Colton Hinderliter, Georgia, Best High School Short Film & PSA Winner
  • “Well, when I came back from Philadelphia, I made a scrapbook.  I took my scrapbook to school and I encouraged all my friends to enter the CA contest,”
    ~ Myra Vicchrilli, Colorado, Best Poem Winner K-2.
  • “Participating in this contest has helped me learn more about the Constitution. Because I wanted to learn and study about the Constitution so my poem would be accurate for the contest.  And I needed to study for some questions that CA sent us that they would ask us in Philadelphia.  After visiting Philadelphia, I was encouraged to enter again because of how much fun it was and how important it was.  So then I studied and learned even more,”
    ~Bethany Cooksey, Oregon, Best Poem Winner
  • “The entire CA experience, I think, helped me become a more informed citizen.  We hear a lot  about our liberties and our freedoms, especially in the context of what’s going on right now.  You know the electronic surveillance.  Because of my experience with CA, it’s helped me become a more civically aware individual and know my rights, know the extent of the government’s power,”
    ~Joseph Valencia, Colorado, Best Middle School Song Winner
  • “Her (Sadie’s) experience with ya’ll is still one of the highlights of her life. She’s 13 now and is an amazing young woman. She has grown and matured and so has her love of the Constitution and what it means. She recently attended her first caucus here in Utah and loved it. Her involvement with your amazing organization sparked what I believe will be a lifetime love of the Constitution. She wants to be a lawyer so she can protect it,”
    ~Toni Albritton, mother of Sadie Albritton, Best Emblem Winner

 

DOWNLOAD THE IMPACT STATEMENT HERE

Interactive Constitution: Live

Where Your Student Body Interacts with a Bi-Partisan Political Panel

Contact Constituting America at constitutingamerica@yahoo.com
or (888) 937-0917 to book your school now!

Dear Educator,

Kids are Bored with Speakers

I am pleased to announce the premiere of my foundation, Constituting America’s, special and one of a kind new lecture series, “The Interactive Constitution: Live.” This series will be a two-part session that will occur in the fall and the spring of your school year. It will involve your high school student body in an interactive way. Kids are bored with routine speakers speaking “at” them. Thus, we have created a speakers series that has the speakers speaking “with” them. Your students will be involved in an exciting and inspiring interactive discussion. This series will bring to life the U. S. Constitution in a Bi- PARTISAN way. It will include speakers from a specially hand picked list, (available upon confirmation), that represents the Legislative, Executive and Judicial branches from BOTH parties. In order to explain the relevancy and importance of the U.S. Constitution we are providing speakers that encompass all aspects of the Constitution from the federal, state and local arenas – just as our founding fathers intended it. Many kids are familiar with the President only and are unaware of the necessities of the “people’s branch,’ – the Legislative Branch and the Judicial Branch – not to mention the crucial role States play and their own local communities.

Fall and Spring Sessions

To incorporate all levels of government, our exciting Interactive Constitution: Live series will represent the Federal Government in the fall session and the State and Local governments in the spring session. In the fall session we will have speakers from the United States Legislative, Executive and Judicial branches. In the spring we will have speakers from the States, Local and Community governments. The speakers will sit at a panel and be presented with Constitutionally relevant questions, (that are attached), regarding each branch. My 16 year-old daughter, Juliette Turner (author of the best selling book, Our Constitution Rocks), and I will moderate. A natural “debate” will occur between the “branches,” encouraging your student body to “interact” with questions per topic, or per inspiration!

We Value Bi-Partisan Politics

We VALUE bi-partisan politics as we BELIEVE that the U.S. Constitution is non-partisan. Both parties will be represented simultaneously, thus a natural exchange of views will occur which will inherently sharpen the reasoning skills of your student body. We encourage you to spend a class or two before our visit with the prepared questions to stimulate a lively interaction and debate between the panelists and your student body.

We are enthusiastic about out new speaker series, The Interactive Constitution: Live. Please book your school now. Demand is high. We want your school to be included!

Sincerely,

JanineBlue

Janine Turner

Actress, Northern Exposure Founder & Co-Chair

 

————–Panel Questions————

 

 Legislative Branch Questions

  1. Do you believe it is the right of the branches of government to expand and alter the Constitution or the people’s rights through the Amendment Process?
    1. Where do you believe the people’s representatives, in all branches, have crossed the line?
  2. How important is the Senate approval of Supreme Court Justices?
    1. Do Senators make impartial decisions or party decisions?
  3. George Washington said in his Farewell Address that the party system would be the demise of the country because people would care more about their party than America and Americans. Do you believe this is happening today?
    1. How are political parties beneficial?
    2. How are political parties detrimental?
    3. Chairman Michael McCaul’s Border Security Bill was only 23 pages, including amendments. Are you willing to try to curb the length of bills and make them more transparent for the people?
  4. James Madison said that in Federalist 62 that it is of no avail to elect men of our own choice if the laws are so voluminous that they cannot be read or so incoherent that they cannot be understood. Do you believe this is happening today?
    1. How are the mammoth comprehensive bills beneficial?
    2. How are the mammoth comprehensive bills detrimental?
  5. Do you believe the Legislative Branch is legislating themselves right out of the people’s heart and understanding?
    1. What can the Legislative Branch do to compete with the Executive Branch’s simplified messages?
  6. Do you believe the Executive Branch has usurped the Legislative Branch?
  7. Do you believe the Judicial Branch has usurped the Legislative and Executive branches?
  8. What has been the best Judicial decision in curbing the Legislative Branch?
    1. What has been the best Judicial decision in curbing the Executive Branch?

Executive Branch Questions

  1. The military seems to be most in keeping with George Washington’s warning about the party system

– that it would be the ruin of America. The military is non-partisan. It answers to all presidents of all parties. Please explain the importance of both of these points in regard to defending the country.

  1. How could this non-partisan way of working benefit America and Americans?
  2. Discuss the history of the Defense Department and how it fits under the Executive Branch umbrella.
  3. Discuss how the Founding Fathers wanted a check on the President in the Executive branch and how they separated the powers. One example is the House holding the purse strings.
    1. Discuss how the President in the Executive Branch often circumvents this “check.”
  4. Discuss the “War Powers Act” that the Legislative Branch passed, giving the President unilateral powers regarding war and declaring war for a limited time.
    1. Do you think this Act is beneficial or detrimental?
  5. Discuss the chain of command within the Defense Department.
  6. How has war changed over the years?
  7. What is America’s greatest threat?
  8. Please discuss how all Armed Forces swear allegiance to protect the U.S. Constitution.
    1. Why is this important?

Judicial Branch Questions

  1. What is the most important Supreme Court Decision in preventing tyranny in American history?
  2. What is the most important Supreme Court Decision affecting the American people positively?
    1. What is the most important Supreme Court Decision affecting the American people detrimentally?
    2. What are your views regarding many judges “legislating from the bench?”
  1. Do you believe the Supreme Court or Federal Courts usurp the people’s branch – the Legislative Branch?
    1. Do you believe that the Supreme Court is as our Founding Fathers intended?
  2. Do you believe the impact of Marbury vs. Madison was in keeping with the Founding Fathers’ vision?
  3. What American President in American history did the most to alter the checks and balances of the U.S. Constitution?

State Legislature Questions

So many kids are focused soley on the Federal government, most especially the President. Explain why our Founding Fathers wanted a multi-tiered government.

  1. Explain some of the responsibilities of the State Legislature
  2. What are the responsibilities of the Governor?
  3. Do you believe the Federal government is usurping States’ Rights?
    1. Give some examples
    2. In what way do the states need the Federal government?
    3. Do any of these ways breach the Constitutional limitations
    4. How can the States regain independence?
  4. How do you explain to the voting populace why State elections matter?
  5. How does one get involved in State politics?
  6. How old do you have to be?
  7. How do you feel the 17th Amendment has helped or hurt States’ rights?
  8. How did the 17th Amendment help or hurt the people’s rights and/or liberties?

 

Local Government Questions

  1. What are examples of local government?
    1. Why does local government matter?
    2. Why is it important that people vote in local elections?
    3. How can one be informed about local candidates?
    4. How is local government different now than what our Founding Father’s envisioned?
      1. How do these differences affect liberty?
      2. How do these difference protect liberty?
    5. Explain how the local government best represents the community’s needs?
      1. What is the hardest part about the job?
      2. What is the most rewarding part about the job?
    6. How does one run for office and how old do you need to be?

 

Community Civic Duty Questions

  1. Explain why it is important to be an active citizen in the community even if you do not hold a political position.
  2. Why do so many people not understand why being involved in liberty is so important?
  3. How does a citizen not get discouraged in the political process?
  4. What are some example of citizen duties, responsibilities and opportunities?
  5. How old does one have to be, to be involved?
  6. How do you feel that the Federal government helps or hurts the needs of the local community?
  7. How do you feel the State government helps or hurts the needs of the local community?
  8. Do you believe the Founding Fathers’ vision is being honored?
    1. How has it changed?
    2. What changes are better?
    3. What changes are worse?

Congratulations to Saturday’s Winner:

Timothy Frazier

“Our Constitution Rocks” Book Winner & Raffle Entry Winner!   

Saturday’s Question Was:

According to James D. Best, how many years did it take to ratify the 27th Amendment?

Saturday’s Answer Was: 

203 years. Proposed in 1789. Achieved 3/4 majority in 1992.

Use the Constitution Archives Search Box at Top Right of the Homepage to Answer Today’s Question.
Click Here  for More Contest Rules & Information

In her essay on Federalist 36, Janine Turner quotes Alexander Hamilton. What is the last Alexander Hamilton quote Janine references in her essay?

Extra credit: add your thoughts on how this quote is relevant today!

Answer the question in the “reply” box below the question, after you click “Read Post.”The first to answer wins a copy of Constituting America National Youth Director, Juliette Turner’s Bestselling book, Our Constitution Rocks, and is entered in a drawing at the end of the quiz for the Constituting America Goodie Bag!   Only one Our Constitution Rocks will be awarded per person during the course of the contest; previous winners may still enter and be entered for drawing multiple times, but may only win the book once.

Congratulations to Monday’s Winner:

Scott Smith

“Our Constitution Rocks” Book Winner & Raffle Entry Winner!   

Monday’s Question Was:

In her essay on Federalist 31, Constituting America Founder and Co-chair Janine Turner highlights several quotes from Alexander Hamilton. What is the first Hamilton quote Janine cites?

Extra credit: add your thoughts on how this quote is relevant today!

Monday’s Answer Was:

“I repeat here what I have observed in substance in another place, that all observations, founded upon the danger of usurpation, ought to be referred to the composition and structure of the government, not to the nature and extent of its powers. The state governments, by their original constitution, are invested with complete sovereignty.” Read more

Use the Constitution Archives Search Box at Top Right of the Homepage to Answer Today’s Question.
Click Here  for More Contest Rules & Information

Question for Saturday, April 19, 2014:

According to James D. Best, how many years did it take to ratify the 27th Amendment?

Answer the question in the “reply” box below the question, after you click “Read Post.”The first to answer wins a copy of Constituting America National Youth Director, Juliette Turner’s Bestselling, Our Constitution Rocks, and is entered in a drawing at the end of the quizfor the Constituting America Goodie Bag!   Only one Our Constituting Rocks is awarded per person during the course of the contest; previous winners may still enter and be entered for drawing multiple times, but may only win the book once.

Use the Constitution Archives Search Box at Top Right of the Homepage to Answer Today’s Question.
Click Here  for More Contest Rules & Information

In her essay on Federalist 31, Constituting America Founder and Co-chair Janine Turner highlights several quotes from Alexander Hamilton. What is the first Hamilton quote Janine cites?

Extra credit: add your thoughts on how this quote is relevant today!

Answer the question in the “reply” box below the question, after you click “Read Post.”The first to answer wins a copy of Constituting America National Youth Director, Juliette Turner’s Bestselling, Our Constitution Rocks, and is entered in a drawing at the end of the quizfor the Constituting America Goodie Bag!   Only one Our Constitution Rocks will be awarded per person during the course of the contest; previous winners may still enter and be entered for drawing multiple times, but may only win the book once.

Congratulations to Thursday’s Winner:

“Our Constitution Rocks” Book Winner & Raffle Entry Winners:   

David Weakland
Marvin Watts

Honorable Mention:

Jill Mayfield

Thursday’s Question Was:

In her essay on Federalist 48, Janine Turner points out a quote from Thomas Jefferson, as very relevant today. What is the quote?

Thursday’s Answer Was:

“A great number of laws had been cast violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature.”

From Marvin Watts: “How is this relevant for today? The people had to wait until the Affordable Care Act became law to find out what was in it. We the people are paying the price. There are regulations in this law that we the people still do not know about. We the people have to become better informed.”

Congratulations to Monday’s Winner:

“Our Constitution Rocks” Book Winner & Raffle Entry Winner: Peter Elfvin  

Honorable Mention:

Nick Moats

Vern Davidson

Monday’s Question Was:

In his essay on the Preamble, Dr. David Bobb said that although many interpret “to form a more perfect union” to mean progress, it actually meant what?

Monday’s Answer Was:

“It meant, simply, that the Constitution would be an improvement upon the Articles of Confederation, which left much to be desired in its anemic, nearly non-existent central government.” 

Use the Constitution Archives Search Box at Top Right of the Homepage to Answer Today’s Question.
Click Here  for More Contest Rules & Information

In her essay on Federalist 48, Janine Turner points out a quote from Thomas Jefferson, as very relevant today. What is the quote?

Extra credit: add your thoughts on how this quote is relevant today!

Answer the question in the “reply” box below the question, after you click “Read Post.” Read more

Congratulations to Friday’s Winners:

First Place, Raffle Drawing Winner: Phil Tolbert

“Our Constitution Rocks” Book Winner:  Edward Nowacki

Honorable Mention: Tammy Darling

Friday’s Question Was:

Allison Hayward wrote in her essay on Federalist No. 15 that Hamilton spoke of troubles for the country because the “present configuration is inadequate to the task.”  She explained that because the central government could not govern, four issues would occur.  What were the four issues?

Friday’s Answer Was:

The central government cannot govern, and thus cannot
1. honor its debts,
2. defend its territory,
3. engage in diplomacy, or
4. unite its constituent state governments.

Use the Constitution Archives Search Box at Top Right of the Homepage to Answer Today’s Question.
Click Here  for More Contest Rules & Information

In his essay on the Preamble, Dr. David Bobb said that although many interpret “to form a more perfect union” to mean progress, it actually meant what?

Answer the question in the “reply” box below the question, after you click “Read Post.” Read more

Use the Constitution Archives Search Box at Top Right of the Homepage to Answer Today’s Question.
Click Here  for More Contest Rules & Information

Question for Friday, March 28, 2014:

Allison Hayward wrote in her essay on Federalist No. 15 that Hamilton spoke of troubles for the country because the “present configuration is inadequate to the task.”  She explained that because the central government could not govern, four issues would occur.  What were the four issues?

Answer the question in the “reply” box below the question, after you click “Read Post.”

Read more

Congratulations to Wednesday’s Winners:

Phil Tobert (entered in raffle)

Joe Ping (wins “Our Constitution Rocks & entered in raffle) 

Wednesday’s Question:
In his essay on The Emancipation Proclamation, Scot Faulkner stated that President Abraham Lincoln achieved “an historical trifecta.”  What three things did President Lincoln do to accomplish this?

The Answer to Wednesday’s Question was: 

1. “He revolutionized the Union war effort by bringing 200,000 blacks into the Union army.”
2. “He isolated the Confederacy from Europe, making Union victory inevitable.”
3. “He also strategically shifted public policy within the parameters of constitutional government and laid the ground work for the immediate and universal abolition of slavery everywhere in America by amending the Constitution.”

Use the Constitution Archives Search Box at Top Right of the Homepage to Answer Today’s Question.
Click Here  for More Contest Rules & Information

Question for Wednesday, March 26:
In his essay on The Emancipation Proclamation, Scot Faulkner stated that President Abraham Lincoln achieved “an historical trifecta.”  What three things did President Lincoln do to accomplish this?

Answer the question in the “reply” box below the question, after you click “Read Post.”

Read more

Congratulations to Monday’s Winners:

Phil Tolbert (raffle entry)

Jim Brown (“Our Constitution Rocks” book)

David Schroeder (Facebook Winner, “Our Constitution Rocks” book)

Honorable Mention: David

Click Here for Monday’s Question

The Answer to Monday’s Question Was:  

“Feed the weakness, starve the heart
Watch the soul regress
Rhyme and reason take their toll
Happy opportune the guess.”

Congratulations to Saturday’s Winner:

 Sunny J

Click Here for Saturday’s Question

The Answer to Saturday’s Question Was: Four 

 

Use the Constitution Archives Search Box at Top Right of the Homepage to Answer Today’s Question.

Click Here  for More Contest Rules & Information

Question for Monday, March 24:

Janine Turner was so moved by the Federalist Papers that in her essay on Federalist No. 20, she was inspired to write a poem titled The Ransom of Reason.  What is the last stanza of this poem? Read more

Congratulations to Wednesday’s Winner:

Phil Tolbert

Click Here for Wednesday’s Question

The Answer to Wednesday’s Question Was:

The “general welfare clause”

Use the Constitution Archives Search Box at Top Right of the Homepage to Answer Today’s Question.

Click Here  for More Contest Rules & Information

Question for Saturday, March 22, 2014:

How many essays are about and/or reference Marbury v. Madison by John Marshall? (Hint: Choose “Classics That Inspired the Constitution” from the drop down menu to find Marbury v. Madison) Read more

Use the Constitution Archives Search Box at Top Right of the Homepage to Answer Today’s Question.
Click Here  for More Contest Rules & Information

Question for Wednesday, March 19:

In John S. Baker’s essay on Article I, Section 8, Clause 1, he states that this clause is often mischaracterized as what?

Answer the question in the “reply” box below the question, after you click “Read Post.”

The first to answer wins a copy of Constituting America National Youth Director, Juliette Turner’s Bestselling, Our Constitution Rocks, and is entered in a drawing at the end of the quiz Read more

Congratulations to Monday’s Winners:

Jahanara Hoque – multiple winner, entered in raffle

Chris Shollenberger – wins an “Our Constitution Rocks” book and raffle entry! 

Doug Cook – Honorable mention for his thorough answer! – wins “Our Constitution Rocks” book and raffle entry! 

Click Here for Monday’s Question

The Answer to Monday’s Question Was:

The movement to abolish the electoral college Read more

Use the Constitution Archives Search Box at Top Right of the Homepage to Answer Today’s Question.
Click Here  for More Contest Rules & Information

Question for Monday, March 17:

In her essay about Federalist No. 63, Janine Turner equates the movement to pass the 17th Amendment to what movement happening today?

Read more

Congratulations to Friday’s Winner:

Jahanara Hoque

Click Here for Friday’s Question

The Answer to Friday’s Question Was:

Professor John Baker

Click Here for Contest Rules and Information

Use the Constitution Archives Search Box at Top Right of the Homepage to Answer Today’s Question.
Click Here  for More Contest Rules & Information

Question for Friday, March 14:

One of the most well known Federalist Papers, Federalist 51,  contains this quote:

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Which Constitutional Scholar wrote the accompanying essay on this Federalist Paper?   Read more

Congratulations to Wednesday’s Winner:

  • Clare Morgan Heupe

Honorable Mention goes to:

  • Paul Pyle

Click Here for Wednesday’s Question

The Answer to Wednesday’s Question Was:

Marc Lampkin and James Best wrote essays on the XVI Amendment in our 2012 Amendment Study.  Gordon Lloyd’s essay on the XVIII Amendment references the XVI Amendment Read more

Use the Constitution Archives Search Box at Top Right of the Homepage to Answer Today’s Question.
Click Here  for More Contest Rules & Information

Question for Wednesday, March 12:

In our study of the Amendments in 2012, what three guest constitutional scholars wrote about the 16th amendment? Read more

Use the Constitution Archives Search Box at Top Right of the Homepage to Answer Today’s Question.
Click Here  for More Contest Rules & Information

In her essay on Federalist #62, Janine Turner identifies a quote that is very relevant today:

“The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action n; but how can that be a rule, which is little known, and less fixed?”

Question for Monday, March 10: Please list another quote in Federalist #62 that Janine mentions in her essay as relevant or profound. Read more

We are so excited to launch our new Constitution Archive Search Option with a 21-question quiz about our 90 in 90 Studies!

Here are the Rules:

Each Monday, Wednesday, and Friday we will post a question from one of our 530 archived essays from over 85 constitutional scholars. Using our “Constitution Archive Search Options” at the top right corner of our home page, you can either type in key words with quote signs or use the drop down option searching the specific studies or essayists. Read more

Click Here for Contest Rules and Information

Click Here for Monday’s Question

Congratulations to Monday’s Winners:

  • Spencer Kawalek
  • Ja’Lisha Urquhart
  • Tina Bogani
  • Jahanara Hoque
  • Ron Meier

The Possible Answers to Monday’s Question Were:

“In this spirit it may be remarked, that the equal vote allowed to each state, is at once a constitutional recognition of the portion of sovereignty remaining in the individual states, and an instrument for preserving that residuary sovereignty.”

“No law of resolution can now be passed without the concurrence, first, of a majority of the people, and then of a majority of the states.”

“Excess of law making seem to be the diseases to which our governments are most liable..” Read more

Testing

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

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.

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.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

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 Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

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. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. 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.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; Read more

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

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;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And

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.

Section. 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article. II.

Section. 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. Read more

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

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 of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, Read more

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 of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: 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.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he 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 shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

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.

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. 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.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls; Read more

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Article. IV.

Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section. 2.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, Read more

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

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.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

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.

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; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

The Word, “the,” being interlined between the seventh and eighth Lines of the first Page, the Word “Thirty” being partly written on an Erazure in the fifteenth Line of the first Page, The Words “is tried” being interlined between the thirty second and thirty third Lines of the first Page and the Word “the” being interlined between the forty third and forty fourth Lines of the second Page.

Attest William Jackson Secretary

done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independance of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

G°. Washington
Presidt and deputy from Virginia

Delaware
Geo: Read
Gunning Bedford jun
John Dickinson
Richard Bassett
Jaco: Broom

Maryland
James McHenry
Dan of St Thos. Jenifer
Danl. Carroll

Virginia
John Blair
James Madison Jr.

North Carolina
Wm. Blount
Richd. Dobbs Spaight
Hu Williamson

South Carolina
J. Rutledge
Charles Cotesworth Pinckney
Charles Pinckney
Pierce Butler

Georgia
William Few
Abr Baldwin

New Hampshire
John Langdon
Nicholas Gilman

Massachusetts
Nathaniel Gorham
Rufus King

Connecticut
Wm. Saml. Johnson
Roger Sherman

New York
Alexander Hamilton

New Jersey
Wil: Livingston
David Brearley
Wm. Paterson
Jona: Dayton

Pennsylvania
B Franklin
Thomas Mifflin
Robt. Morris
Geo. Clymer
Thos. FitzSimons
Jared Ingersoll
James Wilson
Gouv Morris

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

 

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Passed by Congress March 4, 1794. Ratified February 7, 1795.

Note: Article III, section 2, of the Constitution was modified by amendment 11.

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; — The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. –]* The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Passed by Congress December 9, 1803. Ratified June 15, 1804.

Note: A portion of Article II, section 1 of the Constitution was superseded by the 12th amendment.

*Superseded by section 3 of the 20th amendment.

 

Section 1.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.
Congress shall have power to enforce this article by appropriate legislation.

Passed by Congress January 31, 1865. Ratified December 6, 1865.

Note: A portion of Article IV, section 2, of the Constitution was superseded by the 13th amendment.

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Passed by Congress June 13, 1866. Ratified July 9, 1868.

Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.

*Changed by section 1 of the 26th amendment.

Section 1.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude–

Section 2.
The Congress shall have the power to enforce this article by appropriate legislation.

Passed by Congress February 26, 1869. Ratified February 3, 1870.

 

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Passed by Congress July 2, 1909. Ratified February 3, 1913.

Note: Article I, section 9, of the Constitution was modified by amendment 16.

 

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Passed by Congress May 13, 1912. Ratified April 8, 1913.

Note: Article I, section 3, of the Constitution was modified by the 17th amendment.

Section 1.

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2.
The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Passed by Congress December 18, 1917. Ratified January 16, 1919. Repealed by amendment 21.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Passed by Congress June 4, 1919. Ratified August 18, 1920.

Section 1.

The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2.
The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3.
If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4.
The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5.
Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Passed by Congress March 2, 1932. Ratified January 23, 1933.

Note: Article I, section 4, of the Constitution was modified by section 2 of this amendment. In addition, a portion of the 12th amendment was superseded by section 3.

General Introduction
For the Independent Journal.

Author: Alexander Hamilton

To the People of the State of New York:

AFTER an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.

This idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously to be expected. The plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth.

Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government.

It is not, however, my design to dwell upon observations of this nature. I am well aware that it would be disingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations might subject them to suspicion) into interested or ambitious views. Candor will oblige us to admit that even such men may be actuated by upright intentions; and it cannot be doubted that much of the opposition which has made its appearance, or may hereafter make its appearance, will spring from sources, blameless at least, if not respectable–the honest errors of minds led astray by preconceived jealousies and fears. So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. Were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution.

And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.

In the course of the preceding observations, I have had an eye, my fellow-citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth. You will, no doubt, at the same time, have collected from the general scope of them, that they proceed from a source not unfriendly to the new Constitution. Yes, my countrymen, I own to you that, after having given it an attentive consideration, I am clearly of opinion it is your interest to adopt it. I am convinced that this is the safest course for your liberty, your dignity, and your happiness. I affect not reserves which I do not feel. I will not amuse you with an appearance of deliberation when I have decided. I frankly acknowledge to you my convictions, and I will freely lay before you the reasons on which they are founded. The consciousness of good intentions disdains ambiguity. I shall not, however, multiply professions on this head. My motives must remain in the depository of my own breast. My arguments will be open to all, and may be judged of by all. They shall at least be offered in a spirit which will not disgrace the cause of truth.

I propose, in a series of papers, to discuss the following interesting particulars:

THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY THE INSUFFICIENCY OF THE PRESENT CONFEDERATION TO PRESERVE THAT UNION THE NECESSITY OF A GOVERNMENT AT LEAST EQUALLY ENERGETIC WITH THE ONE PROPOSED, TO THE ATTAINMENT OF THIS OBJECT THE CONFORMITY OF THE PROPOSED CONSTITUTION TO THE TRUE PRINCIPLES OF REPUBLICAN GOVERNMENT ITS ANALOGY TO YOUR OWN STATE CONSTITUTION and lastly, THE ADDITIONAL SECURITY WHICH ITS ADOPTION WILL AFFORD TO THE PRESERVATION OF THAT SPECIES OF GOVERNMENT, TO LIBERTY, AND TO PROPERTY.

In the progress of this discussion I shall endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention.

It may perhaps be thought superfluous to offer arguments to prove the utility of the UNION, a point, no doubt, deeply engraved on the hearts of the great body of the people in every State, and one, which it may be imagined, has no adversaries. But the fact is, that we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.  This doctrine will, in all probability, be gradually propagated, till it has votaries enough to countenance an open avowal of it. For nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new Constitution or a dismemberment of the Union. It will therefore be of use to begin by examining the advantages of that Union, the certain evils, and the probable dangers, to which every State will be exposed from its dissolution. This shall accordingly constitute the subject of my next address.

PUBLIUS.

 

Concerning Dangers from Foreign Force and Influence
For the Independent Journal.

Author: John Jay

To the People of the State of New York:

WHEN the people of America reflect that they are now called upon to decide a question, which, in its consequences, must prove one of the most important that ever engaged their attention, the propriety of their taking a very comprehensive, as well as a very serious, view of it, will be evident.

Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers. It is well worthy of consideration therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government.

It has until lately been a received and uncontradicted opinion that the prosperity of the people of America depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object. But politicians now appear, who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the States into distinct confederacies or sovereignties. However extraordinary this new doctrine may appear, it nevertheless has its advocates; and certain characters who were much opposed to it formerly, are at present of the number. Whatever may be the arguments or inducements which have wrought this change in the sentiments and declarations of these gentlemen, it certainly would not be wise in the people at large to adopt these new political tenets without being fully convinced that they are founded in truth and sound policy.

It has often given me pleasure to observe that independent America was not composed of detached and distant territories, but that one connected, fertile, widespreading country was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a variety of soils and productions, and watered it with innumerable streams, for the delight and accommodation of its inhabitants. A succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities.

With equal pleasure I have as often taken notice that Providence has been pleased to give this one connected country to one united people–a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.

This country and this people seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties.

Similar sentiments have hitherto prevailed among all orders and denominations of men among us. To all general purposes we have uniformly been one people each individual citizen everywhere enjoying the same national rights, privileges, and protection. As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states.

A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. They formed it almost as soon as they had a political existence; nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and wellbalanced government for a free people. It is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer.

This intelligent people perceived and regretted these defects. Still continuing no less attached to union than enamored of liberty, they observed the danger which immediately threatened the former and more remotely the latter; and being pursuaded that ample security for both could only be found in a national government more wisely framed, they as with one voice, convened the late convention at Philadelphia, to take that important subject under consideration.

This convention composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue and wisdom, in times which tried the minds and hearts of men, undertook the arduous task. In the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted, and daily consultation; and finally, without having been awed by power, or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils.

Admit, for so is the fact, that this plan is only RECOMMENDED, not imposed, yet let it be remembered that it is neither recommended to BLIND approbation, nor to BLIND reprobation; but to that sedate and candid consideration which the magnitude and importance of the subject demand, and which it certainly ought to receive. But this (as was remarked in the foregoing number of this paper) is more to be wished than expected, that it may be so considered and examined. Experience on a former occasion teaches us not to be too sanguine in such hopes. It is not yet forgotten that well-grounded apprehensions of imminent danger induced the people of America to form the memorable Congress of 1774. That body recommended certain measures to their constituents, and the event proved their wisdom; yet it is fresh in our memories how soon the press began to teem with pamphlets and weekly papers against those very measures. Not only many of the officers of government, who obeyed the dictates of personal interest, but others, from a mistaken estimate of consequences, or the undue influence of former attachments, or whose ambition aimed at objects which did not correspond with the public good, were indefatigable in their efforts to pursuade the people to reject the advice of that patriotic Congress. Many, indeed, were deceived and deluded, but the great majority of the people reasoned and decided judiciously; and happy they are in reflecting that they did so.

They considered that the Congress was composed of many wise and experienced men. That, being convened from different parts of the country, they brought with them and communicated to each other a variety of useful information. That, in the course of the time they passed together in inquiring into and discussing the true interests of their country, they must have acquired very accurate knowledge on that head. That they were individually interested in the public liberty and prosperity, and therefore that it was not less their inclination than their duty to recommend only such measures as, after the most mature deliberation, they really thought prudent and advisable.

These and similar considerations then induced the people to rely greatly on the judgment and integrity of the Congress; and they took their advice, notwithstanding the various arts and endeavors used to deter them from it. But if the people at large had reason to confide in the men of that Congress, few of whom had been fully tried or generally known, still greater reason have they now to respect the judgment and advice of the convention, for it is well known that some of the most distinguished members of that Congress, who have been since tried and justly approved for patriotism and abilities, and who have grown old in acquiring political information, were also members of this convention, and carried into it their accumulated knowledge and experience.

It is worthy of remark that not only the first, but every succeeding Congress, as well as the late convention, have invariably joined with the people in thinking that the prosperity of America depended on its Union. To preserve and perpetuate it was the great object of the people in forming that convention, and it is also the great object of the plan which the convention has advised them to adopt. With what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the Union? Or why is it suggested that three or four confederacies would be better than one? I am persuaded in my own mind that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the Union rests on great and weighty reasons, which I shall endeavor to develop and explain in some ensuing papers. They who promote the idea of substituting a number of distinct confederacies in the room of the plan of the convention, seem clearly to foresee that the rejection of it would put the continuance of the Union in the utmost jeopardy. That certainly would be the case, and I sincerely wish that it may be as clearly foreseen by every good citizen, that whenever the dissolution of the Union arrives, America will have reason to exclaim, in the words of the poet: “FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS.”

PUBLIUS.

The Same Subject Continued: Concerning Dangers From Foreign Force and Influence
For the Independent Journal.

Author: John Jay

To the People of the State of New York:

IT IS not a new observation that the people of any country (if, like the Americans, intelligent and wellinformed) seldom adopt and steadily persevere for many years in an erroneous opinion respecting their interests. That consideration naturally tends to create great respect for the high opinion which the people of America have so long and uniformly entertained of the importance of their continuing firmly united under one federal government, vested with sufficient powers for all general and national purposes.

The more attentively I consider and investigate the reasons which appear to have given birth to this opinion, the more I become convinced that they are cogent and conclusive.

Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their SAFETY seems to be the first. The SAFETY of the people doubtless has relation to a great variety of circumstances and considerations, and consequently affords great latitude to those who wish to define it precisely and comprehensively.

At present I mean only to consider it as it respects security for the preservation of peace and tranquillity, as well as against dangers from FOREIGN ARMS AND INFLUENCE, as from dangers of the LIKE KIND arising from domestic causes. As the former of these comes first in order, it is proper it should be the first discussed. Let us therefore proceed to examine whether the people are not right in their opinion that a cordial Union, under an efficient national government, affords them the best security that can be devised against HOSTILITIES from abroad.

The number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes, whether REAL or PRETENDED, which PROVOKE or INVITE them. If this remark be just, it becomes useful to inquire whether so many JUST causes of war are likely to be given by UNITED AMERICA as by DISUNITED America; for if it should turn out that United America will probably give the fewest, then it will follow that in this respect the Union tends most to preserve the people in a state of peace with other nations.

The JUST causes of war, for the most part, arise either from violation of treaties or from direct violence. America has already formed treaties with no less than six foreign nations, and all of them, except Prussia, are maritime, and therefore able to annoy and injure us. She has also extensive commerce with Portugal, Spain, and Britain, and, with respect to the two latter, has, in addition, the circumstance of neighborhood to attend to.

It is of high importance to the peace of America that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate States or by three or four distinct confederacies.

Because when once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it; for, although town or country, or other contracted influence, may place men in State assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government,–especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the States. Hence, it will result that the administration, the political counsels, and the judicial decisions of the national government will be more wise, systematical, and judicious than those of individual States, and consequently more satisfactory with respect to other nations, as well as more SAFE with respect to us.

Because, under the national government, treaties and articles of treaties, as well as the laws of nations, will always be expounded in one sense and executed in the same manner,–whereas, adjudications on the same points and questions, in thirteen States, or in three or four confederacies, will not always accord or be consistent; and that, as well from the variety of independent courts and judges appointed by different and independent governments, as from the different local laws and interests which may affect and influence them. The wisdom of the convention, in committing such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national government, cannot be too much commended.

Because the prospect of present loss or advantage may often tempt the governing party in one or two States to swerve from good faith and justice; but those temptations, not reaching the other States, and consequently having little or no influence on the national government, the temptation will be fruitless, and good faith and justice be preserved. The case of the treaty of peace with Britain adds great weight to this reasoning.

Because, even if the governing party in a State should be disposed to resist such temptations, yet as such temptations may, and commonly do, result from circumstances peculiar to the State, and may affect a great number of the inhabitants, the governing party may not always be able, if willing, to prevent the injustice meditated, or to punish the aggressors. But the national government, not being affected by those local circumstances, will neither be induced to commit the wrong themselves, nor want power or inclination to prevent or punish its commission by others.

So far, therefore, as either designed or accidental violations of treaties and the laws of nations afford JUST causes of war, they are less to be apprehended under one general government than under several lesser ones, and in that respect the former most favors the SAFETY of the people.

As to those just causes of war which proceed from direct and unlawful violence, it appears equally clear to me that one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter.

Because such violences are more frequently caused by the passions and interests of a part than of the whole; of one or two States than of the Union. Not a single Indian war has yet been occasioned by aggressions of the present federal government, feeble as it is; but there are several instances of Indian hostilities having been provoked by the improper conduct of individual States, who, either unable or unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants.

The neighborhood of Spanish and British territories, bordering on some States and not on others, naturally confines the causes of quarrel more immediately to the borderers. The bordering States, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations; and nothing can so effectually obviate that danger as a national government, whose wisdom and prudence will not be diminished by the passions which actuate the parties immediately interested.

But not only fewer just causes of war will be given by the national government, but it will also be more in their power to accommodate and settle them amicably. They will be more temperate and cool, and in that respect, as well as in others, will be more in capacity to act advisedly than the offending State. The pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. The national government, in such cases, will not be affected by this pride, but will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them.

Besides, it is well known that acknowledgments, explanations, and compensations are often accepted as satisfactory from a strong united nation, which would be rejected as unsatisfactory if offered by a State or confederacy of little consideration or power.

In the year 1685, the state of Genoa having offended Louis XIV., endeavored to appease him. He demanded that they should send their Doge, or chief magistrate, accompanied by four of their senators, to FRANCE, to ask his pardon and receive his terms. They were obliged to submit to it for the sake of peace. Would he on any occasion either have demanded or have received the like humiliation from Spain, or Britain, or any other POWERFUL nation?

PUBLIUS.

The Same Subject Continued: Concerning Dangers from Foreign Force and Influence
For the Independent Journal.

Author: John Jay

To the People of the State of New York:

MY LAST paper assigned several reasons why the safety of the people would be best secured by union against the danger it may be exposed to by JUST causes of war given to other nations; and those reasons show that such causes would not only be more rarely given, but would also be more easily accommodated, by a national government than either by the State governments or the proposed little confederacies.

But the safety of the people of America against dangers from FOREIGN force depends not only on their forbearing to give JUST causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to INVITE hostility or insult; for it need not be observed that there are PRETENDED as well as just causes of war.

It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people. But, independent of these inducements to war, which are more prevalent in absolute monarchies, but which well deserve our attention, there are others which affect nations as often as kings; and some of them will on examination be found to grow out of our relative situation and circumstances.

With France and with Britain we are rivals in the fisheries, and can supply their markets cheaper than they can themselves, notwithstanding any efforts to prevent it by bounties on their own or duties on foreign fish.

With them and with most other European nations we are rivals in navigation and the carrying trade; and we shall deceive ourselves if we suppose that any of them will rejoice to see it flourish; for, as our carrying trade cannot increase without in some degree diminishing theirs, it is more their interest, and will be more their policy, to restrain than to promote it.

In the trade to China and India, we interfere with more than one nation, inasmuch as it enables us to partake in advantages which they had in a manner monopolized, and as we thereby supply ourselves with commodities which we used to purchase from them.

The extension of our own commerce in our own vessels cannot give pleasure to any nations who possess territories on or near this continent, because the cheapness and excellence of our productions, added to the circumstance of vicinity, and the enterprise and address of our merchants and navigators, will give us a greater share in the advantages which those territories afford, than consists with the wishes or policy of their respective sovereigns.

Spain thinks it convenient to shut the Mississippi against us on the one side, and Britain excludes us from the Saint Lawrence on the other; nor will either of them permit the other waters which are between them and us to become the means of mutual intercourse and traffic.

From these and such like considerations, which might, if consistent with prudence, be more amplified and detailed, it is easy to see that jealousies and uneasinesses may gradually slide into the minds and cabinets of other nations, and that we are not to expect that they should regard our advancement in union, in power and consequence by land and by sea, with an eye of indifference and composure.

The people of America are aware that inducements to war may arise out of these circumstances, as well as from others not so obvious at present, and that whenever such inducements may find fit time and opportunity for operation, pretenses to color and justify them will not be wanting. Wisely, therefore, do they consider union and a good national government as necessary to put and keep them in SUCH A SITUATION as, instead of INVITING war, will tend to repress and discourage it. That situation consists in the best possible state of defense, and necessarily depends on the government, the arms, and the resources of the country.

As the safety of the whole is the interest of the whole, and cannot be provided for without government, either one or more or many, let us inquire whether one good government is not, relative to the object in question, more competent than any other given number whatever.

One government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy. It can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. In the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. It can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than State governments or separate confederacies can possibly do, for want of concert and unity of system. It can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the Chief Magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies.

What would the militia of Britain be if the English militia obeyed the government of England, if the Scotch militia obeyed the government of Scotland, and if the Welsh militia obeyed the government of Wales? Suppose an invasion; would those three governments (if they agreed at all) be able, with all their respective forces, to operate against the enemy so effectually as the single government of Great Britain would?

We have heard much of the fleets of Britain, and the time may come, if we are wise, when the fleets of America may engage attention. But if one national government, had not so regulated the navigation of Britain as to make it a nursery for seamen–if one national government had not called forth all the national means and materials for forming fleets, their prowess and their thunder would never have been celebrated. Let England have its navigation and fleet–let Scotland have its navigation and fleet–let Wales have its navigation and fleet–let Ireland have its navigation and fleet–let those four of the constituent parts of the British empire be be under four independent governments, and it is easy to perceive how soon they would each dwindle into comparative insignificance.

Apply these facts to our own case. Leave America divided into thirteen or, if you please, into three or four independent governments–what armies could they raise and pay–what fleets could they ever hope to have? If one was attacked, would the others fly to its succor, and spend their blood and money in its defense? Would there be no danger of their being flattered into neutrality by its specious promises, or seduced by a too great fondness for peace to decline hazarding their tranquillity and present safety for the sake of neighbors, of whom perhaps they have been jealous, and whose importance they are content to see diminished? Although such conduct would not be wise, it would, nevertheless, be natural. The history of the states of Greece, and of other countries, abounds with such instances, and it is not improbable that what has so often happened would, under similar circumstances, happen again.

But admit that they might be willing to help the invaded State or confederacy. How, and when, and in what proportion shall aids of men and money be afforded? Who shall command the allied armies, and from which of them shall he receive his orders? Who shall settle the terms of peace, and in case of disputes what umpire shall decide between them and compel acquiescence? Various difficulties and inconveniences would be inseparable from such a situation; whereas one government, watching over the general and common interests, and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more to the safety of the people.

But whatever may be our situation, whether firmly united under one national government, or split into a number of confederacies, certain it is, that foreign nations will know and view it exactly as it is; and they will act toward us accordingly. If they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. If, on the other hand, they find us either destitute of an effectual government (each State doing right or wrong, as to its rulers may seem convenient), or split into three or four independent and probably discordant republics or confederacies, one inclining to Britain, another to France, and a third to Spain, and perhaps played off against each other by the three, what a poor, pitiful figure will America make in their eyes! How liable would she become not only to their contempt but to their outrage, and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves.

PUBLIUS.

The Same Subject Continued: Concerning Dangers from Foreign Force and Influence
For the Independent Journal.

Author: John Jay

To the People of the State of New York:

QUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch Parliament, makes some observations on the importance of the UNION then forming between England and Scotland, which merit our attention. I shall present the public with one or two extracts from it: “An entire and perfect union will be the solid foundation of lasting peace: It will secure your religion, liberty, and property; remove the animosities amongst yourselves, and the jealousies and differences betwixt our two kingdoms. It must increase your strength, riches, and trade; and by this union the whole island, being joined in affection and free from all apprehensions of different interest, will be ENABLED TO RESIST ALL ITS ENEMIES.” “We most earnestly recommend to you calmness and unanimity in this great and weighty affair, that the union may be brought to a happy conclusion, being the only EFFECTUAL way to secure our present and future happiness, and disappoint the designs of our and your enemies, who will doubtless, on this occasion, USE THEIR UTMOST ENDEAVORS TO PREVENT OR DELAY THIS UNION.”

It was remarked in the preceding paper, that weakness and divisions at home would invite dangers from abroad; and that nothing would tend more to secure us from them than union, strength, and good government within ourselves. This subject is copious and cannot easily be exhausted.

The history of Great Britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. We may profit by their experience without paying the price which it cost them. Although it seems obvious to common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost constantly embroiled in quarrels and wars with one another. Notwithstanding their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other.

Should the people of America divide themselves into three or four nations, would not the same thing happen? Would not similar jealousies arise, and be in like manner cherished? Instead of their being “joined in affection” and free from all apprehension of different “interests,” envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all America, would be the only objects of their policy and pursuits. Hence, like most other BORDERING nations, they would always be either involved in disputes and war, or live in the constant apprehension of them.

The most sanguine advocates for three or four confederacies cannot reasonably suppose that they would long remain exactly on an equal footing in point of strength, even if it was possible to form them so at first; but, admitting that to be practicable, yet what human contrivance can secure the continuance of such equality? Independent of those local circumstances which tend to beget and increase power in one part and to impede its progress in another, we must advert to the effects of that superior policy and good management which would probably distinguish the government of one above the rest, and by which their relative equality in strength and consideration would be destroyed. For it cannot be presumed that the same degree of sound policy, prudence, and foresight would uniformly be observed by each of these confederacies for a long succession of years.

Whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or confederacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. Both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. Much time would not be necessary to enable her to discern these unfriendly dispositions. She would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them. Distrust naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied.

The North is generally the region of strength, and many local circumstances render it probable that the most Northern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. No sooner would this become evident than the NORTHERN HIVE would excite the same ideas and sensations in the more southern parts of America which it formerly did in the southern parts of Europe. Nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors.

They who well consider the history of similar divisions and confederacies will find abundant reason to apprehend that those in contemplation would in no other sense be neighbors than as they would be borderers; that they would neither love nor trust one another, but on the contrary would be a prey to discord, jealousy, and mutual injuries; in short, that they would place us exactly in the situations in which some nations doubtless wish to see us, viz., FORMIDABLE ONLY TO EACH OTHER.

From these considerations it appears that those gentlemen are greatly mistaken who suppose that alliances offensive and defensive might be formed between these confederacies, and would produce that combination and union of wills of arms and of resources, which would be necessary to put and keep them in a formidable state of defense against foreign enemies.

When did the independent states, into which Britain and Spain were formerly divided, combine in such alliance, or unite their forces against a foreign enemy? The proposed confederacies will be DISTINCT NATIONS. Each of them would have its commerce with foreigners to regulate by distinct treaties; and as their productions and commodities are different and proper for different markets, so would those treaties be essentially different. Different commercial concerns must create different interests, and of course different degrees of political attachment to and connection with different foreign nations. Hence it might and probably would happen that the foreign nation with whom the SOUTHERN confederacy might be at war would be the one with whom the NORTHERN confederacy would be the most desirous of preserving peace and friendship. An alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith.

Nay, it is far more probable that in America, as in Europe, neighboring nations, acting under the impulse of opposite interests and unfriendly passions, would frequently be found taking different sides. Considering our distance from Europe, it would be more natural for these confederacies to apprehend danger from one another than from distant nations, and therefore that each of them should be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. And here let us not forget how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or compel them to depart. How many conquests did the Romans and others make in the characters of allies, and what innovations did they under the same character introduce into the governments of those whom they pretended to protect.

Let candid men judge, then, whether the division of America into any given number of independent sovereignties would tend to secure us against the hostilities and improper interference of foreign nations.

PUBLIUS.

Concerning Dangers from Dissensions Between the States
For the Independent Journal.

Author: Alexander Hamilton

To the People of the State of New York:

THE three last numbers of this paper have been dedicated to an enumeration of the dangers to which we should be exposed, in a state of disunion, from the arms and arts of foreign nations. I shall now proceed to delineate dangers of a different and, perhaps, still more alarming kind–those which will in all probability flow from dissensions between the States themselves, and from domestic factions and convulsions. These have been already in some instances slightly anticipated; but they deserve a more particular and more full investigation.

A man must be far gone in Utopian speculations who can seriously doubt that, if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. To presume a want of motives for such contests as an argument against their existence, would be to forget that men are ambitious, vindictive, and rapacious. To look for a continuation of harmony between a number of independent, unconnected sovereignties in the same neighborhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages.

The causes of hostility among nations are innumerable. There are some which have a general and almost constant operation upon the collective bodies of society. Of this description are the love of power or the desire of pre-eminence and dominion–the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed though an equally operative influence within their spheres. Such are the rivalships and competitions of commerce between commercial nations. And there are others, not less numerous than either of the former, which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. Men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification.

The celebrated Pericles, in compliance with the resentment of a prostitute, [1] at the expense of much of the blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the SAMNIANS. The same man, stimulated by private pique against the MEGARENSIANS, [2] another nation of Greece, or to avoid a prosecution with which he was threatened as an accomplice of a supposed theft of the statuary Phidias, [3] or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in the purchase of popularity, [4] or from a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the Grecian annals by the name of the PELOPONNESIAN war; which, after various vicissitudes, intermissions, and renewals, terminated in the ruin of the Athenian commonwealth.

The ambitious cardinal, who was prime minister to Henry VIII., permitting his vanity to aspire to the triple crown, [5] entertained hopes of succeeding in the acquisition of that splendid prize by the influence of the Emperor Charles V. To secure the favor and interest of this enterprising and powerful monarch, he precipitated England into a war with France, contrary to the plainest dictates of policy, and at the hazard of the safety and independence, as well of the kingdom over which he presided by his counsels, as of Europe in general. For if there ever was a sovereign who bid fair to realize the project of universal monarchy, it was the Emperor Charles V., of whose intrigues Wolsey was at once the instrument and the dupe.

The influence which the bigotry of one female, [6] the petulance of another, [7] and the cabals of a third, [8] had in the contemporary policy, ferments, and pacifications, of a considerable part of Europe, are topics that have been too often descanted upon not to be generally known.

To multiply examples of the agency of personal considerations in the production of great national events, either foreign or domestic, according to their direction, would be an unnecessary waste of time. Those who have but a superficial acquaintance with the sources from which they are to be drawn, will themselves recollect a variety of instances; and those who have a tolerable knowledge of human nature will not stand in need of such lights to form their opinion either of the reality or extent of that agency. Perhaps, however, a reference, tending to illustrate the general principle, may with propriety be made to a case which has lately happened among ourselves. If Shays had not been a DESPERATE DEBTOR, it is much to be doubted whether Massachusetts would have been plunged into a civil war.

But notwithstanding the concurring testimony of experience, in this particular, there are still to be found visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the States, though dismembered and alienated from each other. The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord.

Is it not (we may ask these projectors in politics) the true interest of all nations to cultivate the same benevolent and philosophic spirit? If this be their true interest, have they in fact pursued it? Has it not, on the contrary, invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice? Have republics in practice been less addicted to war than monarchies? Are not the former administered by MEN as well as the latter? Are there not aversions, predilections, rivalships, and desires of unjust acquisitions, that affect nations as well as kings? Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities? Is it not well known that their determinations are often governed by a few individuals in whom they place confidence, and are, of course, liable to be tinctured by the passions and views of those individuals? Has commerce hitherto done anything more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power or glory? Have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? Has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other? Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries.

Sparta, Athens, Rome, and Carthage were all republics; two of them, Athens and Carthage, of the commercial kind. Yet were they as often engaged in wars, offensive and defensive, as the neighboring monarchies of the same times. Sparta was little better than a wellregulated camp; and Rome was never sated of carnage and conquest.

Carthage, though a commercial republic, was the aggressor in the very war that ended in her destruction. Hannibal had carried her arms into the heart of Italy and to the gates of Rome, before Scipio, in turn, gave him an overthrow in the territories of Carthage, and made a conquest of the commonwealth.

Venice, in later times, figured more than once in wars of ambition, till, becoming an object to the other Italian states, Pope Julius II. found means to accomplish that formidable league, [9] which gave a deadly blow to the power and pride of this haughty republic.

The provinces of Holland, till they were overwhelmed in debts and taxes, took a leading and conspicuous part in the wars of Europe. They had furious contests with England for the dominion of the sea, and were among the most persevering and most implacable of the opponents of Louis XIV.

In the government of Britain the representatives of the people compose one branch of the national legislature. Commerce has been for ages the predominant pursuit of that country. Few nations, nevertheless, have been more frequently engaged in war; and the wars in which that kingdom has been engaged have, in numerous instances, proceeded from the people.

There have been, if I may so express it, almost as many popular as royal wars. The cries of the nation and the importunities of their representatives have, upon various occasions, dragged their monarchs into war, or continued them in it, contrary to their inclinations, and sometimes contrary to the real interests of the State. In that memorable struggle for superiority between the rival houses of AUSTRIA and BOURBON, which so long kept Europe in a flame, it is well known that the antipathies of the English against the French, seconding the ambition, or rather the avarice, of a favorite leader, [10] protracted the war beyond the limits marked out by sound policy, and for a considerable time in opposition to the views of the court.

The wars of these two last-mentioned nations have in a great measure grown out of commercial considerations,–the desire of supplanting and the fear of being supplanted, either in particular branches of traffic or in the general advantages of trade and navigation.

From this summary of what has taken place in other countries, whose situations have borne the nearest resemblance to our own, what reason can we have to confide in those reveries which would seduce us into an expectation of peace and cordiality between the members of the present confederacy, in a state of separation? Have we not already seen enough of the fallacy and extravagance of those idle theories which have amused us with promises of an exemption from the imperfections, weaknesses and evils incident to society in every shape? Is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue?

Let the point of extreme depression to which our national dignity and credit have sunk, let the inconveniences felt everywhere from a lax and ill administration of government, let the revolt of a part of the State of North Carolina, the late menacing disturbances in Pennsylvania, and the actual insurrections and rebellions in Massachusetts, declare–!

So far is the general sense of mankind from corresponding with the tenets of those who endeavor to lull asleep our apprehensions of discord and hostility between the States, in the event of disunion, that it has from long observation of the progress of society become a sort of axiom in politics, that vicinity or nearness of situation, constitutes nations natural enemies. An intelligent writer expresses himself on this subject to this effect: “NEIGHBORING NATIONS (says he) are naturally enemies of each other unless their common weakness forces them to league in a CONFEDERATE REPUBLIC, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors.” [11] This passage, at the same time, points out the EVIL and suggests the REMEDY.

PUBLIUS.

The Same Subject Continued: Concerning Dangers from Dissensions Between the States
For the Independent Journal.

Author: Alexander Hamilton

To the People of the State of New York:

IT IS sometimes asked, with an air of seeming triumph, what inducements could the States have, if disunited, to make war upon each other? It would be a full answer to this question to say–precisely the same inducements which have, at different times, deluged in blood all the nations in the world. But, unfortunately for us, the question admits of a more particular answer. There are causes of differences within our immediate contemplation, of the tendency of which, even under the restraints of a federal constitution, we have had sufficient experience to enable us to form a judgment of what might be expected if those restraints were removed.

Territorial disputes have at all times been found one of the most fertile sources of hostility among nations. Perhaps the greatest proportion of wars that have desolated the earth have sprung from this origin. This cause would exist among us in full force. We have a vast tract of unsettled territory within the boundaries of the United States. There still are discordant and undecided claims between several of them, and the dissolution of the Union would lay a foundation for similar claims between them all. It is well known that they have heretofore had serious and animated discussion concerning the rights to the lands which were ungranted at the time of the Revolution, and which usually went under the name of crown lands. The States within the limits of whose colonial governments they were comprised have claimed them as their property, the others have contended that the rights of the crown in this article devolved upon the Union; especially as to all that part of the Western territory which, either by actual possession, or through the submission of the Indian proprietors, was subjected to the jurisdiction of the king of Great Britain, till it was relinquished in the treaty of peace. This, it has been said, was at all events an acquisition to the Confederacy by compact with a foreign power. It has been the prudent policy of Congress to appease this controversy, by prevailing upon the States to make cessions to the United States for the benefit of the whole. This has been so far accomplished as, under a continuation of the Union, to afford a decided prospect of an amicable termination of the dispute. A dismemberment of the Confederacy, however, would revive this dispute, and would create others on the same subject. At present, a large part of the vacant Western territory is, by cession at least, if not by any anterior right, the common property of the Union. If that were at an end, the States which made the cession, on a principle of federal compromise, would be apt when the motive of the grant had ceased, to reclaim the lands as a reversion. The other States would no doubt insist on a proportion, by right of representation. Their argument would be, that a grant, once made, could not be revoked; and that the justice of participating in territory acquired or secured by the joint efforts of the Confederacy, remained undiminished. If, contrary to probability, it should be admitted by all the States, that each had a right to a share of this common stock, there would still be a difficulty to be surmounted, as to a proper rule of apportionment. Different principles would be set up by different States for this purpose; and as they would affect the opposite interests of the parties, they might not easily be susceptible of a pacific adjustment.

In the wide field of Western territory, therefore, we perceive an ample theatre for hostile pretensions, without any umpire or common judge to interpose between the contending parties. To reason from the past to the future, we shall have good ground to apprehend, that the sword would sometimes be appealed to as the arbiter of their differences. The circumstances of the dispute between Connecticut and Pennsylvania, respecting the land at Wyoming, admonish us not to be sanguine in expecting an easy accommodation of such differences. The articles of confederation obliged the parties to submit the matter to the decision of a federal court. The submission was made, and the court decided in favor of Pennsylvania. But Connecticut gave strong indications of dissatisfaction with that determination; nor did she appear to be entirely resigned to it, till, by negotiation and management, something like an equivalent was found for the loss she supposed herself to have sustained. Nothing here said is intended to convey the slightest censure on the conduct of that State. She no doubt sincerely believed herself to have been injured by the decision; and States, like individuals, acquiesce with great reluctance in determinations to their disadvantage.

Those who had an opportunity of seeing the inside of the transactions which attended the progress of the controversy between this State and the district of Vermont, can vouch the opposition we experienced, as well from States not interested as from those which were interested in the claim; and can attest the danger to which the peace of the Confederacy might have been exposed, had this State attempted to assert its rights by force. Two motives preponderated in that opposition: one, a jealousy entertained of our future power; and the other, the interest of certain individuals of influence in the neighboring States, who had obtained grants of lands under the actual government of that district. Even the States which brought forward claims, in contradiction to ours, seemed more solicitous to dismember this State, than to establish their own pretensions. These were New Hampshire, Massachusetts, and Connecticut. New Jersey and Rhode Island, upon all occasions, discovered a warm zeal for the independence of Vermont; and Maryland, till alarmed by the appearance of a connection between Canada and that State, entered deeply into the same views. These being small States, saw with an unfriendly eye the perspective of our growing greatness. In a review of these transactions we may trace some of the causes which would be likely to embroil the States with each other, if it should be their unpropitious destiny to become disunited.

The competitions of commerce would be another fruitful source of contention. The States less favorably circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. Each State, or separate confederacy, would pursue a system of commercial policy peculiar to itself. This would occasion distinctions, preferences, and exclusions, which would beget discontent. The habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have independent of this circumstance. WE SHOULD BE READY TO DENOMINATE INJURIES THOSE THINGS WHICH WERE IN REALITY THE JUSTIFIABLE ACTS OF INDEPENDENT SOVEREIGNTIES CONSULTING A DISTINCT INTEREST. The spirit of enterprise, which characterizes the commercial part of America, has left no occasion of displaying itself unimproved. It is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular States might endeavor to secure exclusive benefits to their own citizens. The infractions of these regulations, on one side, the efforts to prevent and repel them, on the other, would naturally lead to outrages, and these to reprisals and wars.

The opportunities which some States would have of rendering others tributary to them by commercial regulations would be impatiently submitted to by the tributary States. The relative situation of New York, Connecticut, and New Jersey would afford an example of this kind. New York, from the necessities of revenue, must lay duties on her importations. A great part of these duties must be paid by the inhabitants of the two other States in the capacity of consumers of what we import. New York would neither be willing nor able to forego this advantage. Her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neighbors; nor would it be practicable, if there were not this impediment in the way, to distinguish the customers in our own markets. Would Connecticut and New Jersey long submit to be taxed by New York for her exclusive benefit? Should we be long permitted to remain in the quiet and undisturbed enjoyment of a metropolis, from the possession of which we derived an advantage so odious to our neighbors, and, in their opinion, so oppressive? Should we be able to preserve it against the incumbent weight of Connecticut on the one side, and the co-operating pressure of New Jersey on the other? These are questions that temerity alone will answer in the affirmative.

The public debt of the Union would be a further cause of collision between the separate States or confederacies. The apportionment, in the first instance, and the progressive extinguishment afterward, would be alike productive of ill-humor and animosity. How would it be possible to agree upon a rule of apportionment satisfactory to all? There is scarcely any that can be proposed which is entirely free from real objections. These, as usual, would be exaggerated by the adverse interest of the parties. There are even dissimilar views among the States as to the general principle of discharging the public debt. Some of them, either less impressed with the importance of national credit, or because their citizens have little, if any, immediate interest in the question, feel an indifference, if not a repugnance, to the payment of the domestic debt at any rate. These would be inclined to magnify the difficulties of a distribution. Others of them, a numerous body of whose citizens are creditors to the public beyond proportion of the State in the total amount of the national debt, would be strenuous for some equitable and effective provision. The procrastinations of the former would excite the resentments of the latter. The settlement of a rule would, in the meantime, be postponed by real differences of opinion and affected delays. The citizens of the States interested would clamour; foreign powers would urge for the satisfaction of their just demands, and the peace of the States would be hazarded to the double contingency of external invasion and internal contention.

Suppose the difficulties of agreeing upon a rule surmounted, and the apportionment made. Still there is great room to suppose that the rule agreed upon would, upon experiment, be found to bear harder upon some States than upon others. Those which were sufferers by it would naturally seek for a mitigation of the burden. The others would as naturally be disinclined to a revision, which was likely to end in an increase of their own incumbrances. Their refusal would be too plausible a pretext to the complaining States to withhold their contributions, not to be embraced with avidity; and the non-compliance of these States with their engagements would be a ground of bitter discussion and altercation. If even the rule adopted should in practice justify the equality of its principle, still delinquencies in payments on the part of some of the States would result from a diversity of other causes–the real deficiency of resources; the mismanagement of their finances; accidental disorders in the management of the government; and, in addition to the rest, the reluctance with which men commonly part with money for purposes that have outlived the exigencies which produced them, and interfere with the supply of immediate wants. Delinquencies, from whatever causes, would be productive of complaints, recriminations, and quarrels. There is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. For it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money.

Laws in violation of private contracts, as they amount to aggressions on the rights of those States whose citizens are injured by them, may be considered as another probable source of hostility. We are not authorized to expect that a more liberal or more equitable spirit would preside over the legislations of the individual States hereafter, if unrestrained by any additional checks, than we have heretofore seen in too many instances disgracing their several codes. We have observed the disposition to retaliation excited in Connecticut in consequence of the enormities perpetrated by the Legislature of Rhode Island; and we reasonably infer that, in similar cases, under other circumstances, a war, not of PARCHMENT, but of the sword, would chastise such atrocious breaches of moral obligation and social justice.

The probability of incompatible alliances between the different States or confederacies and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. From the view they have exhibited of this part of the subject, this conclusion is to be drawn, that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all. Divide et impera [1] must be the motto of every nation that either hates or fears us. [2]

PUBLIUS.

The Consequences of Hostilities Between the States
From the New York Packet.
Tuesday, November 20, 1787.

Author: Alexander Hamilton

To the People of the State of New York:

ASSUMING it therefore as an established truth that the several States, in case of disunion, or such combinations of them as might happen to be formed out of the wreck of the general Confederacy, would be subject to those vicissitudes of peace and war, of friendship and enmity, with each other, which have fallen to the lot of all neighboring nations not united under one government, let us enter into a concise detail of some of the consequences that would attend such a situation.

War between the States, in the first period of their separate existence, would be accompanied with much greater distresses than it commonly is in those countries where regular military establishments have long obtained. The disciplined armies always kept on foot on the continent of Europe, though they bear a malignant aspect to liberty and economy, have, notwithstanding, been productive of the signal advantage of rendering sudden conquests impracticable, and of preventing that rapid desolation which used to mark the progress of war prior to their introduction. The art of fortification has contributed to the same ends. The nations of Europe are encircled with chains of fortified places, which mutually obstruct invasion. Campaigns are wasted in reducing two or three frontier garrisons, to gain admittance into an enemy’s country. Similar impediments occur at every step, to exhaust the strength and delay the progress of an invader. Formerly, an invading army would penetrate into the heart of a neighboring country almost as soon as intelligence of its approach could be received; but now a comparatively small force of disciplined troops, acting on the defensive, with the aid of posts, is able to impede, and finally to frustrate, the enterprises of one much more considerable. The history of war, in that quarter of the globe, is no longer a history of nations subdued and empires overturned, but of towns taken and retaken; of battles that decide nothing; of retreats more beneficial than victories; of much effort and little acquisition.

In this country the scene would be altogether reversed. The jealousy of military establishments would postpone them as long as possible. The want of fortifications, leaving the frontiers of one state open to another, would facilitate inroads. The populous States would, with little difficulty, overrun their less populous neighbors. Conquests would be as easy to be made as difficult to be retained. War, therefore, would be desultory and predatory. PLUNDER and devastation ever march in the train of irregulars. The calamities of individuals would make the principal figure in the events which would characterize our military exploits.

This picture is not too highly wrought; though, I confess, it would not long remain a just one. Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.

The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military establishments. Standing armies, it is said, are not provided against in the new Constitution; and it is therefore inferred that they may exist under it. [1] Their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. But standing armies, it may be replied, must inevitably result from a dissolution of the Confederacy. Frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. The weaker States or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. They would endeavor to supply the inferiority of population and resources by a more regular and effective system of defense, by disciplined troops, and by fortifications. They would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction toward monarchy. It is of the nature of war to increase the executive at the expense of the legislative authority.

The expedients which have been mentioned would soon give the States or confederacies that made use of them a superiority over their neighbors. Small states, or states of less natural strength, under vigorous governments, and with the assistance of disciplined armies, have often triumphed over large states, or states of greater natural strength, which have been destitute of these advantages. Neither the pride nor the safety of the more important States or confederacies would permit them long to submit to this mortifying and adventitious superiority. They would quickly resort to means similar to those by which it had been effected, to reinstate themselves in their lost pre-eminence. Thus, we should, in a little time, see established in every part of this country the same engines of despotism which have been the scourge of the Old World. This, at least, would be the natural course of things; and our reasonings will be the more likely to be just, in proportion as they are accommodated to this standard.

These are not vague inferences drawn from supposed or speculative defects in a Constitution, the whole power of which is lodged in the hands of a people, or their representatives and delegates, but they are solid conclusions, drawn from the natural and necessary progress of human affairs.

It may, perhaps, be asked, by way of objection to this, why did not standing armies spring up out of the contentions which so often distracted the ancient republics of Greece? Different answers, equally satisfactory, may be given to this question. The industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers, which was the true condition of the people of those republics. The means of revenue, which have been so greatly multiplied by the increase of gold and silver and of the arts of industry, and the science of finance, which is the offspring of modern times, concurring with the habits of nations, have produced an entire revolution in the system of war, and have rendered disciplined armies, distinct from the body of the citizens, the inseparable companions of frequent hostility.

There is a wide difference, also, between military establishments in a country seldom exposed by its situation to internal invasions, and in one which is often subject to them, and always apprehensive of them. The rulers of the former can have a good pretext, if they are even so inclined, to keep on foot armies so numerous as must of necessity be maintained in the latter. These armies being, in the first case, rarely, if at all, called into activity for interior defense, the people are in no danger of being broken to military subordination. The laws are not accustomed to relaxations, in favor of military exigencies; the civil state remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other state. The smallness of the army renders the natural strength of the community an over-match for it; and the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil, and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights. The army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of the people.

In a country in the predicament last described, the contrary of all this happens. The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power.

The kingdom of Great Britain falls within the first description. An insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supersede the necessity of a numerous army within the kingdom. A sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite. No motive of national policy has demanded, nor would public opinion have tolerated, a larger number of troops upon its domestic establishment. There has been, for a long time past, little room for the operation of the other causes, which have been enumerated as the consequences of internal war. This peculiar felicity of situation has, in a great degree, contributed to preserve the liberty which that country to this day enjoys, in spite of the prevalent venality and corruption. If, on the contrary, Britain had been situated on the continent, and had been compelled, as she would have been, by that situation, to make her military establishments at home coextensive with those of the other great powers of Europe, she, like them, would in all probability be, at this day, a victim to the absolute power of a single man. ‘T is possible, though not easy, that the people of that island may be enslaved from other causes; but it cannot be by the prowess of an army so inconsiderable as that which has been usually kept up within the kingdom.

If we are wise enough to preserve the Union we may for ages enjoy an advantage similar to that of an insulated situation. Europe is at a great distance from us. Her colonies in our vicinity will be likely to continue too much disproportioned in strength to be able to give us any dangerous annoyance. Extensive military establishments cannot, in this position, be necessary to our security. But if we should be disunited, and the integral parts should either remain separated, or, which is most probable, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of Europe –our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other.

This is an idea not superficial or futile, but solid and weighty. It deserves the most serious and mature consideration of every prudent and honest man of whatever party. If such men will make a firm and solemn pause, and meditate dispassionately on the importance of this interesting idea; if they will contemplate it in all its attitudes, and trace it to all its consequences, they will not hesitate to part with trivial objections to a Constitution, the rejection of which would in all probability put a final period to the Union. The airy phantoms that flit before the distempered imaginations of some of its adversaries would quickly give place to the more substantial forms of dangers, real, certain, and formidable.

PUBLIUS.

The Union as a Safeguard Against Domestic Faction and Insurrection
For the Independent Journal.

Author: Alexander Hamilton

To the People of the State of New York:

A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection. It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy. If they exhibit occasional calms, these only serve as short-lived contrast to the furious storms that are to succeed. If now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. If momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they at the same time admonish us to lament that the vices of government should pervert the direction and tarnish the lustre of those bright talents and exalted endowments for which the favored soils that produced them have been so justly celebrated.

From the disorders that disfigure the annals of those republics the advocates of despotism have drawn arguments, not only against the forms of republican government, but against the very principles of civil liberty. They have decried all free government as inconsistent with the order of society, and have indulged themselves in malicious exultation over its friends and partisans. Happily for mankind, stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms. And, I trust, America will be the broad and solid foundation of other edifices, not less magnificent, which will be equally permanent monuments of their errors.

But it is not to be denied that the portraits they have sketched of republican government were too just copies of the originals from which they were taken. If it had been found impracticable to have devised models of a more perfect structure, the enlightened friends to liberty would have been obliged to abandon the cause of that species of government as indefensible. 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. The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided. To this catalogue of circumstances that tend to the amelioration of popular systems of civil government, I shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new Constitution; I mean 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 latter is that which immediately concerns the object under consideration. It will, however, be of use to examine the principle in its application to a single State, which shall be attended to in another place.

The utility of a Confederacy, as well to suppress faction and to guard the internal tranquillity of States, as to increase their external force and security, is in reality not a new idea. It has been practiced upon in different countries and ages, and has received the sanction of the most approved writers on the subject of politics. The opponents of the plan proposed have, with great assiduity, cited and circulated the observations of Montesquieu on the necessity of a contracted territory for a republican government. But they seem not to have been apprised of the sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence.

When Montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these States. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia can by any means be compared with the models from which he reasoned and to which the terms of his description apply. If we therefore take his ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord, and the miserable objects of universal pity or contempt. Some of the writers who have come forward on the other side of the question seem to have been aware of the dilemma; and have even been bold enough to hint at the division of the larger States as a desirable thing. Such an infatuated policy, such a desperate expedient, might, by the multiplication of petty offices, answer the views of men who possess not qualifications to extend their influence beyond the narrow circles of personal intrigue, but it could never promote the greatness or happiness of the people of America.

Referring the examination of the principle itself to another place, as has been already mentioned, it will be sufficient to remark here that, in the sense of the author who has been most emphatically quoted upon the occasion, it would only dictate a reduction of the SIZE of the more considerable MEMBERS of the Union, but would not militate against their being all comprehended in one confederate government. And this is the true question, in the discussion of which we are at present interested.

So far are the suggestions of Montesquieu from standing in opposition to a general Union of the States, that he explicitly treats of a CONFEDERATE REPUBLIC as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism.

“It is very probable,” (says he [1] ) “that mankind would have been obliged at length to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical government. I mean a CONFEDERATE REPUBLIC.

“This form of government is a convention by which several smaller STATES agree to become members of a larger ONE, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body.

“A republic of this kind, able to withstand an external force, may support itself without any internal corruptions. The form of this society prevents all manner of inconveniences.

“If a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great influence over one, this would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation.

“Should a popular insurrection happen in one of the confederate states the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty.

“As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.”

I have thought it proper to quote at length these interesting passages, because they contain a luminous abridgment of the principal arguments in favor of the Union, and must effectually remove the false impressions which a misapplication of other parts of the work was calculated to make. They have, at the same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the tendency of the Union to repress domestic faction and insurrection.

A distinction, more subtle than accurate, has been raised between a CONFEDERACY and a CONSOLIDATION of the States. The essential characteristic of the first is said to be, the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. It is contended that the national council ought to have no concern with any object of internal administration. An exact equality of suffrage between the members has also been insisted upon as a leading feature of a confederate government. These positions are, in the main, arbitrary; they are supported neither by principle nor precedent. It has indeed happened, that governments of this kind have generally operated in the manner which the distinction taken notice of, supposes to be inherent in their nature; but there have been in most of them extensive exceptions to the practice, which serve to prove, as far as example will go, that there is no absolute rule on the subject. And it will be clearly shown in the course of this investigation that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and imbecility in the government.

The definition of a CONFEDERATE REPUBLIC seems simply to be “an assemblage of societies,” or an association of two or more states into one state. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.

In the Lycian confederacy, which consisted of twenty-three CITIES or republics, the largest were entitled to THREE votes in the COMMON COUNCIL, those of the middle class to TWO, and the smallest to ONE. The COMMON COUNCIL had the appointment of all the judges and magistrates of the respective CITIES. This was certainly the most, delicate species of interference in their internal administration; for if there be any thing that seems exclusively appropriated to the local jurisdictions, it is the appointment of their own officers. Yet Montesquieu, speaking of this association, says: “Were I to give a model of an excellent Confederate Republic, it would be that of Lycia.” Thus we perceive that the distinctions insisted upon were not within the contemplation of this enlightened civilian; and we shall be led to conclude, that they are the novel refinements of an erroneous theory.

PUBLIUS.

The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection
From the New York Packet.
Friday, November 23, 1787.

Author: James Madison

To the People of the State of New York:

AMONG the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.

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

It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. 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.

The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS.

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:

In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice.

In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters.

It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.

The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,–is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.

In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.

The Utility of the Union in Respect to Commercial Relations and a Navy
For the Independent Journal.

Author: Alexander Hamilton

To the People of the State of New York:

THE importance of the Union, in a commercial light, is one of those points about which there is least room to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the subject. This applies as well to our intercourse with foreign countries as with each other.

There are appearances to authorize a supposition that the adventurous spirit, which distinguishes the commercial character of America, has already excited uneasy sensations in several of the maritime powers of Europe. They seem to be apprehensive of our too great interference in that carrying trade, which is the support of their navigation and the foundation of their naval strength. Those of them which have colonies in America look forward to what this country is capable of becoming, with painful solicitude. They foresee the dangers that may threaten their American dominions from the neighborhood of States, which have all the dispositions, and would possess all the means, requisite to the creation of a powerful marine. Impressions of this kind will naturally indicate the policy of fostering divisions among us, and of depriving us, as far as possible, of an ACTIVE COMMERCE in our own bottoms. This would answer the threefold purpose of preventing our interference in their navigation, of monopolizing the profits of our trade, and of clipping the wings by which we might soar to a dangerous greatness. Did not prudence forbid the detail, it would not be difficult to trace, by facts, the workings of this policy to the cabinets of ministers.

If we continue united, we may counteract a policy so unfriendly to our prosperity in a variety of ways. By prohibitory regulations, extending, at the same time, throughout the States, we may oblige foreign countries to bid against each other, for the privileges of our markets. This assertion will not appear chimerical to those who are able to appreciate the importance of the markets of three millions of people–increasing in rapid progression, for the most part exclusively addicted to agriculture, and likely from local circumstances to remain so–to any manufacturing nation; and the immense difference there would be to the trade and navigation of such a nation, between a direct communication in its own ships, and an indirect conveyance of its products and returns, to and from America, in the ships of another country. Suppose, for instance, we had a government in America, capable of excluding Great Britain (with whom we have at present no treaty of commerce) from all our ports; what would be the probable operation of this step upon her politics? Would it not enable us to negotiate, with the fairest prospect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that kingdom? When these questions have been asked, upon other occasions, they have received a plausible, but not a solid or satisfactory answer. It has been said that prohibitions on our part would produce no change in the system of Britain, because she could prosecute her trade with us through the medium of the Dutch, who would be her immediate customers and paymasters for those articles which were wanted for the supply of our markets. But would not her navigation be materially injured by the loss of the important advantage of being her own carrier in that trade? Would not the principal part of its profits be intercepted by the Dutch, as a compensation for their agency and risk? Would not the mere circumstance of freight occasion a considerable deduction? Would not so circuitous an intercourse facilitate the competitions of other nations, by enhancing the price of British commodities in our markets, and by transferring to other hands the management of this interesting branch of the British commerce?

A mature consideration of the objects suggested by these questions will justify a belief that the real disadvantages to Britain from such a state of things, conspiring with the pre-possessions of a great part of the nation in favor of the American trade, and with the importunities of the West India islands, would produce a relaxation in her present system, and would let us into the enjoyment of privileges in the markets of those islands elsewhere, from which our trade would derive the most substantial benefits. Such a point gained from the British government, and which could not be expected without an equivalent in exemptions and immunities in our markets, would be likely to have a correspondent effect on the conduct of other nations, who would not be inclined to see themselves altogether supplanted in our trade.

A further resource for influencing the conduct of European nations toward us, in this respect, would arise from the establishment of a federal navy. There can be no doubt that the continuance of the Union under an efficient government would put it in our power, at a period not very distant, to create a navy which, if it could not vie with those of the great maritime powers, would at least be of respectable weight if thrown into the scale of either of two contending parties. This would be more peculiarly the case in relation to operations in the West Indies. A few ships of the line, sent opportunely to the reinforcement of either side, would often be sufficient to decide the fate of a campaign, on the event of which interests of the greatest magnitude were suspended. Our position is, in this respect, a most commanding one. And if to this consideration we add that of the usefulness of supplies from this country, in the prosecution of military operations in the West Indies, it will readily be perceived that a situation so favorable would enable us to bargain with great advantage for commercial privileges. A price would be set not only upon our friendship, but upon our neutrality. By a steady adherence to the Union we may hope, erelong, to become the arbiter of Europe in America, and to be able to incline the balance of European competitions in this part of the world as our interest may dictate.

But in the reverse of this eligible situation, we shall discover that the rivalships of the parts would make them checks upon each other, and would frustrate all the tempting advantages which nature has kindly placed within our reach. In a state so insignificant our commerce would be a prey to the wanton intermeddlings of all nations at war with each other; who, having nothing to fear from us, would with little scruple or remorse, supply their wants by depredations on our property as often as it fell in their way. The rights of neutrality will only be respected when they are defended by an adequate power. A nation, despicable by its weakness, forfeits even the privilege of being neutral.

Under a vigorous national government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of European jealousy to restrain our growth. This situation would even take away the motive to such combinations, by inducing an impracticability of success. An active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral and physical necessity. We might defy the little arts of the little politicians to control or vary the irresistible and unchangeable course of nature.

But in a state of disunion, these combinations might exist and might operate with success. It would be in the power of the maritime nations, availing themselves of our universal impotence, to prescribe the conditions of our political existence; and as they have a common interest in being our carriers, and still more in preventing our becoming theirs, they would in all probability combine to embarrass our navigation in such a manner as would in effect destroy it, and confine us to a PASSIVE COMMERCE. We should then be compelled to content ourselves with the first price of our commodities, and to see the profits of our trade snatched from us to enrich our enemies and p rsecutors. That unequaled spirit of enterprise, which signalizes the genius of the American merchants and navigators, and which is in itself an inexhaustible mine of national wealth, would be stifled and lost, and poverty and disgrace would overspread a country which, with wisdom, might make herself the admiration and envy of the world.

There are rights of great moment to the trade of America which are rights of the Union–I allude to the fisheries, to the navigation of the Western lakes, and to that of the Mississippi. The dissolution of the Confederacy would give room for delicate questions concerning the future existence of these rights; which the interest of more powerful partners would hardly fail to solve to our disadvantage. The disposition of Spain with regard to the Mississippi needs no comment. France and Britain are concerned with us in the fisheries, and view them as of the utmost moment to their navigation. They, of course, would hardly remain long indifferent to that decided mastery, of which experience has shown us to be possessed in this valuable branch of traffic, and by which we are able to undersell those nations in their own markets. What more natural than that they should be disposed to exclude from the lists such dangerous competitors?

This branch of trade ought not to be considered as a partial benefit. All the navigating States may, in different degrees, advantageously participate in it, and under circumstances of a greater extension of mercantile capital, would not be unlikely to do it. As a nursery of seamen, it now is, or when time shall have more nearly assimilated the principles of navigation in the several States, will become, a universal resource. To the establishment of a navy, it must be indispensable.

To this great national object, a NAVY, union will contribute in various ways. Every institution will grow and flourish in proportion to the quantity and extent of the means concentred towards its formation and support. A navy of the United States, as it would embrace the resources of all, is an object far less remote than a navy of any single State or partial confederacy, which would only embrace the resources of a single part. It happens, indeed, that different portions of confederated America possess each some peculiar advantage for this essential establishment. The more southern States furnish in greater abundance certain kinds of naval stores–tar, pitch, and turpentine. Their wood for the construction of ships is also of a more solid and lasting texture. The difference in the duration of the ships of which the navy might be composed, if chiefly constructed of Southern wood, would be of signal importance, either in the view of naval strength or of national economy. Some of the Southern and of the Middle States yield a greater plenty of iron, and of better quality. Seamen must chiefly be drawn from the Northern hive. The necessity of naval protection to external or maritime commerce does not require a particular elucidation, no more than the conduciveness of that species of commerce to the prosperity of a navy.

An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope, from the diversity in the productions of different States. When the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. The variety, not less than the value, of products for exportation contributes to the activity of foreign commerce. It can be conducted upon much better terms with a large number of materials of a given value than with a small number of materials of the same value; arising from the competitions of trade and from the fluctations of markets. Particular articles may be in great demand at certain periods, and unsalable at others; but if there be a variety of articles, it can scarcely happen that they should all be at one time in the latter predicament, and on this account the operations of the merchant would be less liable to any considerable obstruction or stagnation. The speculative trader will at once perceive the force of these observations, and will acknowledge that the aggregate balance of the commerce of the United States would bid fair to be much more favorable than that of the thirteen States without union or with partial unions.

It may perhaps be replied to this, that whether the States are united or disunited, there would still be an intimate intercourse between them which would answer the same ends; this intercourse would be fettered, interrupted, and narrowed by a multiplicity of causes, which in the course of these papers have been amply detailed. A unity of commercial, as well as political, interests, can only result from a unity of government.

There are other points of view in which this subject might be placed, of a striking and animating kind. But they would lead us too far into the regions of futurity, and would involve topics not proper for a newspaper discussion. I shall briefly observe, that our situation invites and our interests prompt us to aim at an ascendant in the system of American affairs. The world may politically, as well as geographically, be divided into four parts, each having a distinct set of interests. Unhappily for the other three, Europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them all. Africa, Asia, and America, have successively felt her domination. The superiority she has long maintained has tempted her to plume herself as the Mistress of the World, and to consider the rest of mankind as created for her benefit. Men admired as profound philosophers have, in direct terms, attributed to her inhabitants a physical superiority, and have gravely asserted that all animals, and with them the human species, degenerate in America–that even dogs cease to bark after having breathed awhile in our atmosphere.[1] Facts have too long supported these arrogant pretensions of the Europeans. It belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation. Union will enable us to do it. Disunion will will add another victim to his triumphs. Let Americans disdain to be the instruments of European greatness! Let the thirteen States, bound together in a strict and indissoluble Union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world!

PUBLIUS.

The Utility of the Union In Respect to Revenue
From the New York Packet.
Tuesday, November 27, 1787.

Author: Alexander Hamilton

To the People of the State of New York:

THE effects of Union upon the commercial prosperity of the States have been sufficiently delineated. Its tendency to promote the interests of revenue will be the subject of our present inquiry.

The prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares. By multipying the means of gratification, by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate the channels of industry, and to make them flow with greater activity and copiousness. The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer,–all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils. The often-agitated question between agriculture and commerce has, from indubitable experience, received a decision which has silenced the rivalship that once subsisted between them, and has proved, to the satisfaction of their friends, that their interests are intimately blended and interwoven. It has been found in various countries that, in proportion as commerce has flourished, land has risen in value. And how could it have happened otherwise? Could that which procures a freer vent for the products of the earth, which furnishes new incitements to the cultivation of land, which is the most powerful instrument in increasing the quantity of money in a state–could that, in fine, which is the faithful handmaid of labor and industry, in every shape, fail to augment that article, which is the prolific parent of far the greatest part of the objects upon which they are exerted? It is astonishing that so simple a truth should ever have had an adversary; and it is one, among a multitude of proofs, how apt a spirit of ill-informed jealousy, or of too great abstraction and refinement, is to lead men astray from the plainest truths of reason and conviction.

The ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates. Commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury. The hereditary dominions of the Emperor of Germany contain a 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. He has several times been compelled to owe obligations to the pecuniary succors of other nations for the preservation of his essential interests, and is unable, upon the strength of his own resources, to sustain a long or continued war.

But it is not in this aspect of the subject alone that Union will be seen to conduce to the purpose of revenue. There are other points of view, in which its influence will appear more immediate and decisive. It is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation. Tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed, and the treasuries of the States have remained empty. The popular system of administration inherent in the nature of popular government, coinciding with the real scarcity of money incident to a languid and mutilated state of trade, has hitherto defeated every experiment for extensive collections, and has at length taught the different legislatures the folly of attempting them.

No person acquainted with what happens in other countries will be surprised at this circumstance. In so opulent a nation as that of Britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in America, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises. Duties on imported articles form a large branch of this latter description.

In America, it is evident that we must a long time depend for the means of revenue chiefly on such duties. In most parts of it, excises must be confined within a narrow compass. The genius of the people will ill brook the inquisitive and peremptory spirit of excise laws. The pockets of the farmers, on the other hand, will reluctantly yield but scanty supplies, in the unwelcome shape of impositions on their houses and lands; and personal property is too precarious and invisible a fund to be laid hold of in any other way than by the inperceptible agency of taxes on consumption.

If these remarks have any foundation, that state of things which will best enable us to improve and extend so valuable a resource must be best adapted to our political welfare. And it cannot admit of a serious doubt, that this state of things must rest on the basis of a general Union. As far as this would be conducive to the interests of commerce, so far it must tend to the extension of the revenue to be drawn from that source. As far as it would contribute to rendering regulations for the collection of the duties more simple and efficacious, so far it must serve to answer the purposes of making the same rate of duties more productive, and of putting it into the power of the government to increase the rate without prejudice to trade.

The relative situation of these States; the number of rivers with which they are intersected, and of bays that wash there shores; the facility of communication in every direction; the affinity of language and manners; the familiar habits of intercourse; –all these are circumstances that would conspire to render an illicit trade between them a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other. The separate States or confederacies would be necessitated by mutual jealousy to avoid the temptations to that kind of trade by the lowness of their duties. The temper of our governments, for a long time to come, would not permit those rigorous precautions by which the European nations guard the avenues into their respective countries, as well by land as by water; and which, even there, are found insufficient obstacles to the adventurous stratagems of avarice.

In France, there is an army of patrols (as they are called) constantly employed to secure their fiscal regulations against the inroads of the dealers in contraband trade. Mr. Neckar computes the number of these patrols at upwards of twenty thousand. This shows the immense difficulty in preventing that species of traffic, where there is an inland communication, and places in a strong light the disadvantages with which the collection of duties in this country would be encumbered, if by disunion the States should be placed in a situation, with respect to each other, resembling that of France with respect to her neighbors. The arbitrary and vexatious powers with which the patrols are necessarily armed, would be intolerable in a free country.

If, on the contrary, there be but one government pervading all the States, there will be, as to the principal part of our commerce, but ONE SIDE to guard–the ATLANTIC COAST. Vessels arriving directly from foreign countries, laden with valuable cargoes, would rarely choose to hazard themselves to the complicated and critical perils which would attend attempts to unlade prior to their coming into port. They would have to dread both the dangers of the coast, and of detection, as well after as before their arrival at the places of their final destination. An ordinary degree of vigilance would be competent to the prevention of any material infractions upon the rights of the revenue. A few armed vessels, judiciously stationed at the entrances of our ports, might at a small expense be made useful sentinels of the laws. And the government having the same interest to provide against violations everywhere, the co-operation of its measures in each State would have a powerful tendency to render them effectual. Here also we should preserve by Union, an advantage which nature holds out to us, and which would be relinquished by separation. The United States lie at a great distance from Europe, and at a considerable distance from all other places with which they would have extensive connections of foreign trade. The passage from them to us, in a few hours, or in a single night, as between the coasts of France and Britain, and of other neighboring nations, would be impracticable. This is a prodigious security against a direct contraband with foreign countries; but a circuitous contraband to one State, through the medium of another, would be both easy and safe. The difference between a direct importation from abroad, and an indirect importation through the channel of a neighboring State, in small parcels, according to time and opportunity, with the additional facilities of inland communication, must be palpable to every man of discernment.

It is therefore evident, that one national government would be able, at much less expense, to extend the duties on imports, beyond comparison, further than would be practicable to the States separately, or to any partial confederacies. Hitherto, I believe, it may safely be asserted, that these duties have not upon an average exceeded in any State three per cent. In France they are estimated to be about fifteen per cent., and in Britain they exceed this proportion. [1] There seems to be nothing to hinder their being increased in this country to at least treble their present amount. The single article of ardent spirits, under federal regulation, might be made to furnish a considerable revenue. Upon a ratio to the importation into this State, the whole quantity imported into the United States may be estimated at four millions of gallons; which, at a shilling per gallon, would produce two hundred thousand pounds. That article would well bear this rate of duty; and if it should tend to diminish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals, and to the health of the society. There is, perhaps, nothing so much a subject of national extravagance as these spirits.

What will be the consequence, if we are not able to avail ourselves of the resource in question in its full extent? A nation cannot long exist without revenues. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. This is an extremity to which no government will of choice accede. Revenue, therefore, must be had at all events. In this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. It has been already intimated that excises, in their true signification, are too little in unison with the feelings of the people, to admit of great use being made of that mode of taxation; nor, indeed, in the States where almost the sole employment is agriculture, are the objects proper for excise sufficiently numerous to permit very ample collections in that way. Personal estate (as has been before remarked), from the difficulty in tracing it, cannot be subjected to large contributions, by any other means than by taxes on consumption. In populous cities, it may be enough the subject of conjecture, to occasion the oppression of individuals, without much aggregate benefit to the State; but beyond these circles, it must, in a great measure, escape the eye and the hand of the tax-gatherer. As the necessities of the State, nevertheless, must be satisfied in some mode or other, the defect of other resources must throw the principal weight of public burdens on the possessors of land. And as, on the other hand, the wants of the government can never obtain an adequate supply, unless all the sources of revenue are open to its demands, the finances of the community, under such embarrassments, cannot be put into a situation consistent with its respectability or its security. Thus we shall not even have the consolations of a full treasury, to atone for the oppression of that valuable class of the citizens who are employed in the cultivation of the soil. But public and private distress will keep pace with each other in gloomy concert; and unite in deploring the infatuation of those counsels which led to disunion.

PUBLIUS.

Advantage of the Union in Respect to Economy in Government
For the Independent Journal.

Author: Alexander Hamilton

To the People of the State of New York:

As CONNECTED with the subject of revenue, we may with propriety consider that of economy. The money saved from one object may be usefully applied to another, and there will be so much the less to be drawn from the pockets of the people. If the States are united under one government, there will be but one national civil list to support; if they are divided into several confederacies, there will be as many different national civil lists to be provided for–and each of them, as to the principal departments, coextensive with that which would be necessary for a government of the whole. The entire separation of the States into thirteen unconnected sovereignties is a project too extravagant and too replete with danger to have many advocates. The ideas of men who speculate upon the dismemberment of the empire seem generally turned toward three confederacies–one consisting of the four Northern, another of the four Middle, and a third of the five Southern States. There is little probability that there would be a greater number. According to this distribution, each confederacy would comprise an extent of territory larger than that of the kingdom of Great Britain. No well-informed man will suppose that the affairs of such a confederacy can be properly regulated by a government less comprehensive in its organs or institutions than that which has been proposed by the convention. When the dimensions of a State attain to a certain magnitude, it requires the same energy of government and the same forms of administration which are requisite in one of much greater extent. This idea admits not of precise demonstration, because there is no rule by which we can measure the momentum of civil power necessary to the government of any given number of individuals; but when we consider that the island of Britain, nearly commensurate with each of the supposed confederacies, contains about eight millions of people, and when we reflect upon the degree of authority required to direct the passions of so large a society to the public good, we shall see no reason to doubt that the like portion of power would be sufficient to perform the same task in a society far more numerous. Civil power, properly organized and exerted, is capable of diffusing its force to a very great extent; and can, in a manner, reproduce itself in every part of a great empire by a judicious arrangement of subordinate institutions.

The supposition that each confederacy into which the States would be likely to be divided would require a government not less comprehensive than the one proposed, will be strengthened by another supposition, more probable than that which presents us with three confederacies as the alternative to a general Union. If we attend carefully to geographical and commercial considerations, in conjunction with the habits and prejudices of the different States, we shall be led to conclude that in case of disunion they will most naturally league themselves under two governments. The four Eastern States, from all the causes that form the links of national sympathy and connection, may with certainty be expected to unite. New York, situated as she is, would never be unwise enough to oppose a feeble and unsupported flank to the weight of that confederacy. There are other obvious reasons that would facilitate her accession to it. New Jersey is too small a State to think of being a frontier, in opposition to this still more powerful combination; nor do there appear to be any obstacles to her admission into it. Even Pennsylvania would have strong inducements to join the Northern league. An active foreign commerce, on the basis of her own navigation, is her true policy, and coincides with the opinions and dispositions of her citizens. The more Southern States, from various circumstances, may not think themselves much interested in the encouragement of navigation. They may prefer a system which would give unlimited scope to all nations to be the carriers as well as the purchasers of their commodities. Pennsylvania may not choose to confound her interests in a connection so adverse to her policy. As she must at all events be a frontier, she may deem it most consistent with her safety to have her exposed side turned towards the weaker power of the Southern, rather than towards the stronger power of the Northern, Confederacy. This would give her the fairest chance to avoid being the Flanders of America. Whatever may be the determination of Pennsylvania, if the Northern Confederacy includes New Jersey, there is no likelihood of more than one confederacy to the south of that State.

Nothing can be more evident than that the thirteen States will be able to support a national government better than one half, or one third, or any number less than the whole. This reflection must have great weight in obviating that objection to the proposed plan, which is founded on the principle of expense; an objection, however, which, when we come to take a nearer view of it, will appear in every light to stand on mistaken ground.

If, in addition to the consideration of a plurality of civil lists, we take into view the number of persons who must necessarily be employed to guard the inland communication between the different confederacies against illicit trade, and who in time will infallibly spring up out of the necessities of revenue; and if we also take into view the military establishments which it has been shown would unavoidably result from the jealousies and conflicts of the several nations into which the States would be divided, we shall clearly discover that a separation would be not less injurious to the economy, than to the tranquillity, commerce, revenue, and liberty of every part.

PUBLIUS.

Objections to the Proposed Constitution From Extent of Territory Answered
From the New York Packet.
Friday, November 30, 1787.

Author: James Madison

To the People of the State of New York:

WE HAVE seen the necessity of the Union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the Old World, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by our own. All that remains, within this branch of our inquiries, is to take notice of an objection that may be drawn from the great extent of country which the Union embraces. A few observations on this subject will be the more proper, as it is perceived that the adversaries of the new Constitution are availing themselves of the prevailing prejudice with regard to the practicable sphere of republican administration, in order to supply, by imaginary difficulties, the want of those solid objections which they endeavor in vain to find.

The error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. I remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. The true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region.

To this accidental source of the error may be added the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. Being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of those forms, by placing in comparison the vices and defects of the republican, and by citing as specimens of the latter the turbulent democracies of ancient Greece and modern Italy. Under the confusion of names, it has been an easy task to transfer to a republic observations applicable to a democracy only; and among others, the observation that it can never be established but among a small number of people, living within a small compass of territory.

Such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the democratic species; and even in modern Europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded, at the same time, wholly on that principle. If Europe has the merit of discovering this great mechanical power in government, by the simple agency of which the will of the largest political body may be concentred, and its force directed to any object which the public good requires, America can claim the merit of making the discovery the basis of unmixed and extensive republics. It is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration.

As the natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions; so the natural limit of a republic is that distance from the centre which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs. Can it be said that the limits of the United States exceed this distance? It will not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years, the representatives of the States have been almost continually assembled, and that the members from the most distant States are not chargeable with greater intermissions of attendance than those from the States in the neighborhood of Congress.

That we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the Union. The limits, as fixed by the treaty of peace, are: on the east the Atlantic, on the south the latitude of thirty-one degrees, on the west the Mississippi, and on the north an irregular line running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second. The southern shore of Lake Erie lies below that latitude. Computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hundred and seventy-three common miles; computing it from thirty-one to forty-two degrees, to seven hundred and sixty-four miles and a half. Taking the mean for the distance, the amount will be eight hundred and sixty-eight miles and three-fourths. The mean distance from the Atlantic to the Mississippi does not probably exceed seven hundred and fifty miles. On a comparison of this extent with that of several countries in Europe, the practicability of rendering our system commensurate to it appears to be demonstrable. It is not a great deal larger than Germany, where a diet representing the whole empire is continually assembled; or than Poland before the late dismemberment, where another national diet was the depositary of the supreme power. Passing by France and Spain, we find that in Great Britain, inferior as it may be in size, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the Union.

Favorable as this view of the subject may be, some observations remain which will place it in a light still more satisfactory.

In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity. Were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction.

A second observation to be made is that the immediate object of the federal Constitution is to secure the union of the thirteen primitive States, which we know to be practicable; and to add to them such other States as may arise in their own bosoms, or in their neighborhoods, which we cannot doubt to be equally practicable. The arrangements that may be necessary for those angles and fractions of our territory which lie on our northwestern frontier, must be left to those whom further discoveries and experience will render more equal to the task.

Let it be remarked, in the third place, that the intercourse throughout the Union will be facilitated by new improvements. Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout, the whole extent of the thirteen States. The communication between the Western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.

A fourth and still more important consideration is, that as almost every State will, on one side or other, be a frontier, and will thus find, in regard to its safety, an inducement to make some sacrifices for the sake of the general protection; so the States which lie at the greatest distance from the heart of the Union, and which, of course, may partake least of the ordinary circulation of its benefits, will be at the same time immediately contiguous to foreign nations, and will consequently stand, on particular occasions, in greatest need of its strength and resources. It may be inconvenient for Georgia, or the States forming our western or northeastern borders, to send their representatives to the seat of government; but they would find it more so to struggle alone against an invading enemy, or even to support alone the whole expense of those precautions which may be dictated by the neighborhood of continual danger. If they should derive less benefit, therefore, from the Union in some respects than the less distant States, they will derive greater benefit from it in other respects, and thus the proper equilibrium will be maintained throughout.

I submit to you, my fellow-citizens, these considerations, in full confidence that the good sense which has so often marked your decisions will allow them their due weight and effect; and that you will never suffer difficulties, however formidable in appearance, or however fashionable the error on which they may be founded, to drive you into the gloomy and perilous scene into which the advocates for disunion would conduct you. Hearken not to the unnatural voice which tells you that the people of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellowcitizens of one great, respectable, and flourishing empire. Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. No, my countrymen, shut your ears against this unhallowed language. Shut your hearts against the poison which it conveys; the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their Union, and excite horror at the idea of their becoming aliens, rivals, enemies. And if novelties are to be shunned, believe me, the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rendering us in pieces, in order to preserve our liberties and promote our happiness. But why is the experiment of an extended republic to be rejected, merely because it may comprise what is new? Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? To this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theatre, in favor of private rights and public happiness. Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them. If they erred most in the structure of the Union, this was the work most difficult to be executed; this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide.

PUBLIUS.

The Insufficiency of the Present Confederation to Preserve the Union
For the Independent Journal.

Author: Alexander Hamilton

To the People of the State of New York:

IN THE course of the preceding papers, I have endeavored, my fellow-citizens, to place before you, in a clear and convincing light, the importance of Union to your political safety and happiness. I have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot which binds the people of America together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation. In the sequel of the inquiry through which I propose to accompany you, the truths intended to be inculcated will receive further confirmation from facts and arguments hitherto unnoticed. If the road over which you will still have to pass should in some places appear to you tedious or irksome, you will recollect that you are in quest of information on a subject the most momentous which can engage the attention of a free people, that the field through which you have to travel is in itself spacious, and that the difficulties of the journey have been unnecessarily increased by the mazes with which sophistry has beset the way. It will be my aim to remove the obstacles from your progress in as compendious a manner as it can be done, without sacrificing utility to despatch.

In pursuance of the plan which I have laid down for the discussion of the subject, the point next in order to be examined is the “insufficiency of the present Confederation to the preservation of the Union.” It may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new Constitution. It must in truth be acknowledged that, however these may differ in other respects, they in general appear to harmonize in this sentiment, at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. The facts that support this opinion are no longer objects of speculation. They have forced themselves upon the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the principal share in precipitating the extremity at which we are arrived, a reluctant confession of the reality of those defects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the Union.

We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience. Are there engagements to the performance of which we are held by every tie respectable among men? These are the subjects of constant and unblushing violation. Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence? These remain without any proper or satisfactory provision for their discharge. Have we valuable territories and important posts in the possession of a foreign power which, by express stipulations, ought long since to have been surrendered? These are still retained, to the prejudice of our interests, not less than of our rights. Are we in a condition to resent or to repel the aggression? We have neither troops, nor treasury, nor government. [1] Are we even in a condition to remonstrate with dignity? The just imputations on our own faith, in respect to the same treaty, ought first to be removed. Are we entitled by nature and compact to a free participation in the navigation of the Mississippi? Spain excludes us from it. Is public credit an indispensable resource in time of public danger? We seem to have abandoned its cause as desperate and irretrievable. Is commerce of importance to national wealth? Ours is at the lowest point of declension. Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our government even forbids them to treat with us. Our ambassadors abroad are the mere pageants of mimic sovereignty. Is a violent and unnatural decrease in the value of land a symptom of national distress? The price of improved land in most parts of the country is much lower than can be accounted for by the quantity of waste land at market, and can only be fully explained by that want of private and public confidence, which are so alarmingly prevalent among all ranks, and which have a direct tendency to depreciate property of every kind. Is private credit the friend and patron of industry? That most useful kind which relates to borrowing and lending is reduced within the narrowest limits, and this still more from an opinion of insecurity than from the scarcity of money. To shorten an enumeration of particulars which can afford neither pleasure nor instruction, it may in general be demanded, what indication is there of national disorder, poverty, and insignificance that could befall a community so peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of our public misfortunes?

This is the melancholy situation to which we have been brought by those very maxims and councils which would now deter us from adopting the proposed Constitution; and which, not content with having conducted us to the brink of a precipice, seem resolved to plunge us into the abyss that awaits us below. Here, my countrymen, impelled by every motive that ought to influence an enlightened people, let us make a firm stand for our safety, our tranquillity, our dignity, our reputation. Let us at last break the fatal charm which has too long seduced us from the paths of felicity and prosperity.

It is true, as has been before observed that facts, too stubborn to be resisted, have produced a species of general assent to the abstract proposition that there exist material defects in our national system; but the usefulness of the concession, on the part of the old adversaries of federal measures, is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success. While they admit that the government of the United States is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. They seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of State authority; at sovereignty in the Union, and complete independence in the members. They still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio. This renders a full display of the principal defects of the Confederation necessary, in order to show that the evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric.

The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist. Though this principle does not run through all the powers delegated to the Union, yet it pervades and governs those on which the efficacy of the rest depends. Except as to the rule of appointment, the United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option.

It is a singular instance of the capriciousness of the human mind, that after all the admonitions we have had from experience on this head, there should still be found men who object to the new Constitution, for deviating from a principle which has been found the bane of the old, and which is in itself evidently incompatible with the idea of GOVERNMENT; a principle, in short, which, if it is to be executed at all, must substitute the violent and sanguinary agency of the sword to the mild influence of the magistracy.

There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity; leaving nothing to future discretion; and depending for its execution on the good faith of the parties. Compacts of this kind exist among all civilized nations, subject to the usual vicissitudes of peace and war, of observance and non-observance, as the interests or passions of the contracting powers dictate. In the early part of the present century there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized. With a view to establishing the equilibrium of power and the peace of that part of the world, all the resources of negotiation were exhausted, and triple and quadruple alliances were formed; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or passion.

If the particular States in this country are disposed to stand in a similar relation to each other, and to drop the project of a general DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be pernicious, and would entail upon us all the mischiefs which have been enumerated under the first head; but it would have the merit of being, at least, consistent and practicable Abandoning all views towards a confederate government, this would bring us to a simple alliance offensive and defensive; and would place us in a situation to be alternate friends and enemies of each other, as our mutual jealousies and rivalships, nourished by the intrigues of foreign nations, should prescribe to us.

But if we are unwilling to be placed in this perilous situation; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power, under the direction of a common council, we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the Union to the persons of the citizens, –the only proper objects of government.

Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it.

There was a time when we were told that breaches, by the States, of the regulations of the federal authority were not to be expected; that a sense of common interest would preside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the Union. This language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. It at all times betrayed an ignorance of the true springs by which human conduct is actuated, and belied the original inducements to the establishment of civil power. Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity.

In addition to all this, there is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations. From this spirit it happens, that in every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre. This tendency is not difficult to be accounted for. It has its origin in the love of power. Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged. This simple proposition will teach us how little reason there is to expect, that the persons intrusted with the administration of the affairs of the particular members of a confederacy will at all times be ready, with perfect good-humor, and an unbiased regard to the public weal, to execute the resolutions or decrees of the general authority. The reverse of this results from the constitution of human nature.

If, therefore, the measures of the Confederacy cannot be executed without the intervention of the particular administrations, there will be little prospect of their being executed at all. The rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. They will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption. All this will be done; and in a spirit of interested and suspicious scrutiny, without that knowledge of national circumstances and reasons of state, which is essential to a right judgment, and with that strong predilection in favor of local objects, which can hardly fail to mislead the decision. The same process must be repeated in every member of which the body is constituted; and the execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the ill-informed and prejudiced opinion of every part. Those who have been conversant in the proceedings of popular assemblies; who have seen how difficult it often is, where there is no exterior pressure of circumstances, to bring them to harmonious resolutions on important points, will readily conceive how impossible it must be to induce a number of such assemblies, deliberating at a distance from each other, at different times, and under different impressions, long to co-operate in the same views and pursuits.

In our case, the concurrence of thirteen distinct sovereign wills is requisite, under the Confederation, to the complete execution of every important measure that proceeds from the Union. It has happened as was to have been foreseen. The measures of the Union have not been executed; the delinquencies of the States have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand. Congress at this time scarcely possess the means of keeping up the forms of administration, till the States can have time to agree upon a more substantial substitute for the present shadow of a federal government. Things did not come to this desperate extremity at once. The causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the Union. The greater deficiencies of some States furnished the pretext of example and the temptation of interest to the complying, or to the least delinquent States. Why should we do more in proportion than those who are embarked with us in the same political voyage? Why should we consent to bear more than our proper share of the common burden? These were suggestions which human selfishness could not withstand, and which even speculative men, who looked forward to remote consequences, could not, without hesitation, combat. Each State, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins.

PUBLIUS.

The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
From the New York Packet.
Tuesday, December 4, 1787.

Author: Alexander Hamilton

To the People of the State of New York:

THE tendency of the principle of legislation for States, or communities, in their political capacities, as it has been exemplified by the experiment we have made of it, is equally attested by the events which have befallen all other governments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems. The confirmations of this fact will be worthy of a distinct and particular examination. I shall content myself with barely observing here, that of all the confederacies of antiquity, which history has handed down to us, the Lycian and Achaean leagues, as far as there remain vestiges of them, appear to have been most free from the fetters of that mistaken principle, and were accordingly those which have best deserved, and have most liberally received, the applauding suffrages of political writers.

This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war.

It remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. Independent of this motive of sympathy, if a large and influential State should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause. Specious arguments of danger to the common liberty could easily be contrived; plausible excuses for the deficiencies of the party could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the good-will, even of those States which were not chargeable with any violation or omission of duty. This would be the more likely to take place, as the delinquencies of the larger members might be expected sometimes to proceed from an ambitious premeditation in their rulers, with a view to getting rid of all external control upon their designs of personal aggrandizement; the better to effect which it is presumable they would tamper beforehand with leading individuals in the adjacent States. If associates could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encouraging the dissensions of a Confederacy, from the firm union of which they had so much to fear. When the sword is once drawn, the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union.

This may be considered as the violent death of the Confederacy. Its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form. It is not probable, considering the genius of this country, that the complying States would often be inclined to support the authority of the Union by engaging in a war against the non-complying States. They would always be more ready to pursue the milder course of putting themselves upon an equal footing with the delinquent members by an imitation of their example. And the guilt of all would thus become the security of all. Our past experience has exhibited the operation of this spirit in its full light. There would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be employed. In the article of pecuniary contribution, which would be the most usual source of delinquency, it would often be impossible to decide whether it had proceeded from disinclination or inability. The pretense of the latter would always be at hand. And the case must be very flagrant in which its fallacy could be detected with sufficient certainty to justify the harsh expedient of compulsion. It is easy to see that this problem alone, as often as it should occur, would open a wide field for the exercise of factious views, of partiality, and of oppression, in the majority that happened to prevail in the national council.

It seems to require no pains to prove that the States ought not to prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. And yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. Such a scheme, if practicable at all, would instantly degenerate into a military despotism; but it will be found in every light impracticable. The resources of the Union would not be equal to the maintenance of an army considerable enough to confine the larger States within the limits of their duty; nor would the means ever be furnished of forming such an army in the first instance. Whoever considers the populousness and strength of several of these States singly at the present juncture, and looks forward to what they will become, even at the distance of half a century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities. A project of this kind is little less romantic than the monster-taming spirit which is attributed to the fabulous heroes and demi-gods of antiquity.

Even in those confederacies which have been composed of members smaller than many of our counties, the principle of legislation for sovereign States, supported by military coercion, has never been found effectual. It has rarely been attempted to be employed, but against the weaker members; and in most instances attempts to coerce the refractory and disobedient have been the signals of bloody wars, in which one half of the confederacy has displayed its banners against the other half.

The result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States.

To this reasoning it may perhaps be objected, that if any State should be disaffected to the authority of the Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached.

The pausibility of this objection will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated. This neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the Constitution. The State leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage.

But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority.

If opposition to the national government should arise from the disorderly conduct of refractory or seditious individuals, it could be overcome by the same means which are daily employed against the same evil under the State governments. The magistracy, being equally the ministers of the law of the land, from whatever source it might emanate, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness. As to those partial commotions and insurrections, which sometimes disquiet society, from the intrigues of an inconsiderable faction, or from sudden or occasional illhumors that do not infect the great body of the community the general government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single member. And as to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm, they do not fall within any ordinary rules of calculation. When they happen, they commonly amount to revolutions and dismemberments of empire. No form of government can always either avoid or control them. It is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because it could not perform impossibilities.

PUBLIUS.

The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
For the Independent Journal.
Tuesday, December 4, 1787.

Author: Alexander Hamilton

To the People of the State of New York:

AN OBJECTION, of a nature different from that which has been stated and answered, in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of America. It may be said that it would tend to render the government of the Union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the States for local purposes. Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government.

But let it be admitted, for argument’s sake, that mere wantonness and lust of domination would be sufficient to beget that disposition; still it may be safely affirmed, that the sense of the constituent body of the national representatives, or, in other words, the people of the several States, would control the indulgence of so extravagant an appetite. It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities. The proof of this proposition turns upon the greater degree of influence which the State governments if they administer their affairs with uprightness and prudence, will generally possess over the people; a circumstance which at the same time teaches us that there is an inherent and intrinsic weakness in all federal constitutions; and that too much pains cannot be taken in their organization, to give them all the force which is compatible with the principles of liberty.

The superiority of influence in favor of the particular governments would result partly from the diffusive construction of the national government, but chiefly from the nature of the objects to which the attention of the State administrations would be directed.

It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter.

This strong propensity of the human heart would find powerful auxiliaries in the objects of State regulation.

The variety of more minute interests, which will necessarily fall under the superintendence of the local administrations, and which will form so many rivulets of influence, running through every part of the society, cannot be particularized, without involving a detail too tedious and uninteresting to compensate for the instruction it might afford.

There is one transcendant advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light,–I mean the ordinary administration of criminal and civil justice. This, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. It is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes, more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government. This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union.

The operations of the national government, on the other hand, falling less immediately under the observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men. Relating to more general interests, they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment.

The reasoning on this head has been abundantly exemplified by the experience of all federal constitutions with which we are acquainted, and of all others which have borne the least analogy to them.

Though the ancient feudal systems were not, strictly speaking, confederacies, yet they partook of the nature of that species of association. There was a common head, chieftain, or sovereign, whose authority extended over the whole nation; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of INFERIOR vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience, to the persons of whom they held it. Each principal vassal was a kind of sovereign, within his particular demesnes. The consequences of this situation were a continual opposition to authority of the sovereign, and frequent wars between the great barons or chief feudatories themselves. The power of the head of the nation was commonly too weak, either to preserve the public peace, or to protect the people against the oppressions of their immediate lords. This period of European affairs is emphatically styled by historians, the times of feudal anarchy.

When the sovereign happened to be a man of vigorous and warlike temper and of superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purpose of a more regular authority. But in general, the power of the barons triumphed over that of the prince; and in many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or States. In those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents. The barons, or nobles, equally the enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both; till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy. Had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor, and in the abridgment or subversion of the royal authority.

This is not an assertion founded merely in speculation or conjecture. Among other illustrations of its truth which might be cited, Scotland will furnish a cogent example. The spirit of clanship which was, at an early day, introduced into that kingdom, uniting the nobles and their dependants by ties equivalent to those of kindred, rendered the aristocracy a constant overmatch for the power of the monarch, till the incorporation with England subdued its fierce and ungovernable spirit, and reduced it within those rules of subordination which a more rational and more energetic system of civil polity had previously established in the latter kingdom.

The separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government. It will be well if they are not able to counteract its legitimate and necessary authority. The points of similitude consist in the rivalship of power, applicable to both, and in the CONCENTRATION of large portions of the strength of the community into particular DEPOSITS, in one case at the disposal of individuals, in the other case at the disposal of political bodies.

A concise review of the events that have attended confederate governments will further illustrate this important doctrine; an inattention to which has been the great source of our political mistakes, and has given our jealousy a direction to the wrong side. This review shall form the subject of some ensuing papers.

PUBLIUS.

The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
For the Independent Journal.

Author: Alexander Hamilton and James Madison

To the People of the State of New York:

AMONG the confederacies of antiquity, the most considerable was that of the Grecian republics, associated under the Amphictyonic council. From the best accounts transmitted of this celebrated institution, it bore a very instructive analogy to the present Confederation of the American States.

The members retained the character of independent and sovereign states, and had equal votes in the federal council. This council had a general authority to propose and resolve whatever it judged necessary for the common welfare of Greece; to declare and carry on war; to decide, in the last resort, all controversies between the members; to fine the aggressing party; to employ the whole force of the confederacy against the disobedient; to admit new members. The Amphictyons were the guardians of religion, and of the immense riches belonging to the temple of Delphos, where they had the right of jurisdiction in controversies between the inhabitants and those who came to consult the oracle. As a further provision for the efficacy of the federal powers, they took an oath mutually to defend and protect the united cities, to punish the violators of this oath, and to inflict vengeance on sacrilegious despoilers of the temple.

In theory, and upon paper, this apparatus of powers seems amply sufficient for all general purposes. In several material instances, they exceed the powers enumerated in the articles of confederation. The Amphictyons had in their hands the superstition of the times, one of the principal engines by which government was then maintained; they had a declared authority to use coercion against refractory cities, and were bound by oath to exert this authority on the necessary occasions.

Very different, nevertheless, was the experiment from the theory. The powers, like those of the present Congress, were administered by deputies appointed wholly by the cities in their political capacities; and exercised over them in the same capacities. Hence the weakness, the disorders, and finally the destruction of the confederacy. The more powerful members, instead of being kept in awe and subordination, tyrannized successively over all the rest. Athens, as we learn from Demosthenes, was the arbiter of Greece seventy-three years. The Lacedaemonians next governed it twenty-nine years; at a subsequent period, after the battle of Leuctra, the Thebans had their turn of domination.

It happened but too often, according to Plutarch, that the deputies of the strongest cities awed and corrupted those of the weaker; and that judgment went in favor of the most powerful party.

Even in the midst of defensive and dangerous wars with Persia and Macedon, the members never acted in concert, and were, more or fewer of them, eternally the dupes or the hirelings of the common enemy. The intervals of foreign war were filled up by domestic vicissitudes convulsions, and carnage.

After the conclusion of the war with Xerxes, it appears that the Lacedaemonians required that a number of the cities should be turned out of the confederacy for the unfaithful part they had acted. The Athenians, finding that the Lacedaemonians would lose fewer partisans by such a measure than themselves, and would become masters of the public deliberations, vigorously opposed and defeated the attempt. This piece of history proves at once the inefficiency of the union, the ambition and jealousy of its most powerful members, and the dependent and degraded condition of the rest. The smaller members, though entitled by the theory of their system to revolve in equal pride and majesty around the common center, had become, in fact, satellites of the orbs of primary magnitude.

Had the Greeks, says the Abbe Milot, been as wise as they were courageous, they would have been admonished by experience of the necessity of a closer union, and would have availed themselves of the peace which followed their success against the Persian arms, to establish such a reformation. Instead of this obvious policy, Athens and Sparta, inflated with the victories and the glory they had acquired, became first rivals and then enemies; and did each other infinitely more mischief than they had suffered from Xerxes. Their mutual jealousies, fears, hatreds, and injuries ended in the celebrated Peloponnesian war; which itself ended in the ruin and slavery of the Athenians who had begun it.

As a weak government, when not at war, is ever agitated by internal dissentions, so these never fail to bring on fresh calamities from abroad. The Phocians having ploughed up some consecrated ground belonging to the temple of Apollo, the Amphictyonic council, according to the superstition of the age, imposed a fine on the sacrilegious offenders. The Phocians, being abetted by Athens and Sparta, refused to submit to the decree. The Thebans, with others of the cities, undertook to maintain the authority of the Amphictyons, and to avenge the violated god. The latter, being the weaker party, invited the assistance of Philip of Macedon, who had secretly fostered the contest. Philip gladly seized the opportunity of executing the designs he had long planned against the liberties of Greece. By his intrigues and bribes he won over to his interests the popular leaders of several cities; by their influence and votes, gained admission into the Amphictyonic council; and by his arts and his arms, made himself master of the confederacy.

Such were the consequences of the fallacious principle on which this interesting establishment was founded. Had Greece, says a judicious observer on her fate, been united by a stricter confederation, and persevered in her union, she would never have worn the chains of Macedon; and might have proved a barrier to the vast projects of Rome.

The Achaean league, as it is called, was another society of Grecian republics, which supplies us with valuable instruction.

The Union here was far more intimate, and its organization much wiser, than in the preceding instance. It will accordingly appear, that though not exempt from a similar catastrophe, it by no means equally deserved it.

The cities composing this league retained their municipal jurisdiction, appointed their own officers, and enjoyed a perfect equality. The senate, in which they were represented, had the sole and exclusive right of peace and war; of sending and receiving ambassadors; of entering into treaties and alliances; of appointing a chief magistrate or praetor, as he was called, who commanded their armies, and who, with the advice and consent of ten of the senators, not only administered the government in the recess of the senate, but had a great share in its deliberations, when assembled. According to the primitive constitution, there were two praetors associated in the administration; but on trial a single one was preferred.

It appears that the cities had all the same laws and customs, the same weights and measures, and the same money. But how far this effect proceeded from the authority of the federal council is left in uncertainty. It is said only that the cities were in a manner compelled to receive the same laws and usages. When Lacedaemon was brought into the league by Philopoemen, it was attended with an abolition of the institutions and laws of Lycurgus, and an adoption of those of the Achaeans. The Amphictyonic confederacy, of which she had been a member, left her in the full exercise of her government and her legislation. This circumstance alone proves a very material difference in the genius of the two systems.

It is much to be regretted that such imperfect monuments remain of this curious political fabric. Could its interior structure and regular operation be ascertained, it is probable that more light would be thrown by it on the science of federal government, than by any of the like experiments with which we are acquainted.

One important fact seems to be witnessed by all the historians who take notice of Achaean affairs. It is, that as well after the renovation of the league by Aratus, as before its dissolution by the arts of Macedon, there was infinitely more of moderation and justice in the administration of its government, and less of violence and sedition in the people, than were to be found in any of the cities exercising SINGLY all the prerogatives of sovereignty. The Abbe Mably, in his observations on Greece, says that the popular government, which was so tempestuous elsewhere, caused no disorders in the members of the Achaean republic, BECAUSE IT WAS THERE TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE CONFEDERACY.

We are not to conclude too hastily, however, that faction did not, in a certain degree, agitate the particular cities; much less that a due subordination and harmony reigned in the general system. The contrary is sufficiently displayed in the vicissitudes and fate of the republic.

Whilst the Amphictyonic confederacy remained, that of the Achaeans, which comprehended the less important cities only, made little figure on the theatre of Greece. When the former became a victim to Macedon, the latter was spared by the policy of Philip and Alexander. Under the successors of these princes, however, a different policy prevailed. The arts of division were practiced among the Achaeans. Each city was seduced into a separate interest; the union was dissolved. Some of the cities fell under the tyranny of Macedonian garrisons; others under that of usurpers springing out of their own confusions. Shame and oppression erelong awaken their love of liberty. A few cities reunited. Their example was followed by others, as opportunities were found of cutting off their tyrants. The league soon embraced almost the whole Peloponnesus. Macedon saw its progress; but was hindered by internal dissensions from stopping it. All Greece caught the enthusiasm and seemed ready to unite in one confederacy, when the jealousy and envy in Sparta and Athens, of the rising glory of the Achaeans, threw a fatal damp on the enterprise. The dread of the Macedonian power induced the league to court the alliance of the Kings of Egypt and Syria, who, as successors of Alexander, were rivals of the king of Macedon. This policy was defeated by Cleomenes, king of Sparta, who was led by his ambition to make an unprovoked attack on his neighbors, the Achaeans, and who, as an enemy to Macedon, had interest enough with the Egyptian and Syrian princes to effect a breach of their engagements with the league.

The Achaeans were now reduced to the dilemma of submitting to Cleomenes, or of supplicating the aid of Macedon, its former oppressor. The latter expedient was adopted. The contests of the Greeks always afforded a pleasing opportunity to that powerful neighbor of intermeddling in their affairs. A Macedonian army quickly appeared. Cleomenes was vanquished. The Achaeans soon experienced, as often happens, that a victorious and powerful ally is but another name for a master. All that their most abject compliances could obtain from him was a toleration of the exercise of their laws. Philip, who was now on the throne of Macedon, soon provoked by his tyrannies, fresh combinations among the Greeks. The Achaeans, though weakenened by internal dissensions and by the revolt of Messene, one of its members, being joined by the AEtolians and Athenians, erected the standard of opposition. Finding themselves, though thus supported, unequal to the undertaking, they once more had recourse to the dangerous expedient of introducing the succor of foreign arms. The Romans, to whom the invitation was made, eagerly embraced it. Philip was conquered; Macedon subdued. A new crisis ensued to the league. Dissensions broke out among it members. These the Romans fostered. Callicrates and other popular leaders became mercenary instruments for inveigling their countrymen. The more effectually to nourish discord and disorder the Romans had, to the astonishment of those who confided in their sincerity, already proclaimed universal liberty [1] throughout Greece. With the same insidious views, they now seduced the members from the league, by representing to their pride the violation it committed on their sovereignty. By these arts this union, the last hope of Greece, the last hope of ancient liberty, was torn into pieces; and such imbecility and distraction introduced, that the arms of Rome found little difficulty in completing the ruin which their arts had commenced. The Achaeans were cut to pieces, and Achaia loaded with chains, under which it is groaning at this hour.

I have thought it not superfluous to give the outlines of this important portion of history; both because it teaches more than one lesson, and because, as a supplement to the outlines of the Achaean constitution, it emphatically illustrates the tendency of federal bodies rather to anarchy among the members, than to tyranny in the head.

PUBLIUS.

The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
For the Independent Journal.

Author: Alexander Hamilton and James Madison

To the People of the State of New York:

THE examples of ancient confederacies, cited in my last paper, have not exhausted the source of experimental instruction on this subject. There are existing institutions, founded on a similar principle, which merit particular consideration. The first which presents itself is the Germanic body.

In the early ages of Christianity, Germany was occupied by seven distinct nations, who had no common chief. The Franks, one of the number, having conquered the Gauls, established the kingdom which has taken its name from them. In the ninth century Charlemagne, its warlike monarch, carried his victorious arms in every direction; and Germany became a part of his vast dominions. On the dismemberment, which took place under his sons, this part was erected into a separate and independent empire. Charlemagne and his immediate descendants possessed the reality, as well as the ensigns and dignity of imperial power. But the principal vassals, whose fiefs had become hereditary, and who composed the national diets which Charlemagne had not abolished, gradually threw off the yoke and advanced to sovereign jurisdiction and independence. The force of imperial sovereignty was insufficient to restrain such powerful dependants; or to preserve the unity and tranquillity of the empire. The most furious private wars, accompanied with every species of calamity, were carried on between the different princes and states. The imperial authority, unable to maintain the public order, declined by degrees till it was almost extinct in the anarchy, which agitated the long interval between the death of the last emperor of the Suabian, and the accession of the first emperor of the Austrian lines. In the eleventh century the emperors enjoyed full sovereignty: In the fifteenth they had little more than the symbols and decorations of power.

Out of this feudal system, which has itself many of the important features of a confederacy, has grown the federal system which constitutes the Germanic empire. Its powers are vested in a diet representing the component members of the confederacy; in the emperor, who is the executive magistrate, with a negative on the decrees of the diet; and in the imperial chamber and the aulic council, two judiciary tribunals having supreme jurisdiction in controversies which concern the empire, or which happen among its members.

The diet possesses the general power of legislating for the empire; of making war and peace; contracting alliances; assessing quotas of troops and money; constructing fortresses; regulating coin; admitting new members; and subjecting disobedient members to the ban of the empire, by which the party is degraded from his sovereign rights and his possessions forfeited. 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. The members of the diet, as such, are subject in all cases to be judged by the emperor and diet, and in their private capacities by the aulic council and imperial chamber.

The prerogatives of the emperor are numerous. The most important of them are: his exclusive right to make propositions to the diet; to negative its resolutions; to name ambassadors; to confer dignities and titles; to fill vacant electorates; to found universities; to grant privileges not injurious to the states of the empire; to receive and apply the public revenues; and generally to watch over the public safety. In certain cases, the electors form a council to him. In quality of emperor, he possesses no territory within the empire, nor receives any revenue for his support. But his revenue and dominions, in other qualities, constitute him one of the most powerful princes in Europe.

From such a parade of constitutional powers, in the representatives and head of this confederacy, the natural supposition would be, that it must form an exception to the general character which belongs to its kindred systems. 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 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; of foreign intrusions, and foreign intrigues; of requisitions of men and money disregarded, or partially complied with; of attempts to enforce them, altogether abortive, or attended with slaughter and desolation, involving the innocent with the guilty; of general inbecility, confusion, and misery.

In the sixteenth century, the emperor, with one part of the empire on his side, was seen engaged against the other princes and states. In one of the conflicts, the emperor himself was put to flight, and very near being made prisoner by the elector of Saxony. The late king of Prussia was more than once pitted against his imperial sovereign; and commonly proved an overmatch for him. Controversies and wars among the members themselves have been so common, that the German annals are crowded with the bloody pages which describe them. Previous to the peace of Westphalia, Germany was desolated by a war of thirty years, in which the emperor, with one half of the empire, was on one side, and Sweden, with the other half, on the opposite side. Peace was at length negotiated, and dictated by foreign powers; and the articles of it, to which foreign powers are parties, made a fundamental part of the Germanic constitution.

If the nation happens, on any emergency, to be more united by the necessity of self-defense, its situation is still deplorable. Military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies, 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 small body of national troops, which has been judged necessary in time of peace, is defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury.

The impossibility of maintaining order and dispensing justice among these sovereign subjects, produced the experiment of dividing the empire into nine or ten circles or districts; of giving them an interior organization, and of charging them with the military execution of the laws against delinquent and contumacious members. This experiment has only served to demonstrate more fully the radical vice of the constitution. 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.

We may form some judgment of this scheme of military coercion from a sample given by Thuanus. In Donawerth, a free and imperial city of the circle of Suabia, the Abb 300 de St. Croix enjoyed certain immunities which had been reserved to him. In the exercise of these, on some public occasions, outrages were committed on him by the people of the city. The consequence was that the city was put under the ban of the empire, and the Duke of Bavaria, though director of another circle, obtained an appointment to enforce it. He soon appeared before the city with a corps of ten thousand troops, and finding it a fit occasion, as he had secretly intended from the beginning, to revive an antiquated claim, on the pretext that his ancestors had suffered the place to be dismembered from his territory, [1] he took possession of it in his own name, disarmed, and punished the inhabitants, and reannexed the city to his domains.

It may be asked, perhaps, what has so long kept this disjointed machine from falling entirely to pieces? The answer is obvious: The weakness of most of the members, who are unwilling to expose themselves to the mercy of foreign powers; the weakness of most of the principal members, compared with the formidable powers all around them; the vast weight and influence which the emperor derives from his separate and heriditary dominions; and the interest he feels in preserving a system with which his family pride is connected, and which constitutes him the first prince in Europe; –these causes support a feeble and precarious Union; whilst the repellant quality, incident to the nature of sovereignty, and which time continually strengthens, prevents any reform whatever, founded on a proper consolidation. Nor is it to be imagined, if this obstacle could be surmounted, that the neighboring powers would suffer a revolution to take place which would give to the empire the force and preeminence to which it is entitled. Foreign nations have long considered themselves as interested in the changes made by events in this constitution; and have, on various occasions, betrayed their policy of perpetuating its anarchy and weakness.

If more direct examples were wanting, Poland, as a government over local sovereigns, might not improperly be taken notice of. Nor could any proof more striking be given of the calamities flowing from such institutions. Equally unfit for self-government and self-defense, it has long been at the mercy of its powerful neighbors; who have lately had the mercy to disburden it of one third of its people and territories.

The connection among the Swiss cantons scarcely amounts to a confederacy; though it is sometimes cited as an instance of the stability of such institutions.

They have no common treasury; no common troops even in war; no common coin; no common judicatory; nor any other common mark of sovereignty.

They are kept together by the peculiarity of their topographical position; by their individual weakness and insignificancy; by the fear of powerful neighbors, to one of which they were formerly subject; by the few sources of contention among a people of such simple and homogeneous manners; by their joint interest in their dependent possessions; by the mutual aid they stand in need of, for suppressing insurrections and rebellions, an aid expressly stipulated and often required and afforded; and by the necessity of some regular and permanent provision for accomodating disputes among the cantons. The provision is, that the parties at variance shall each choose four judges out of the neutral cantons, who, in case of disagreement, choose an umpire. This tribunal, under an oath of impartiality, pronounces definitive sentence, which all the cantons are bound to enforce. The competency of this regulation may be estimated by a clause in their treaty of 1683, with Victor Amadeus of Savoy; in which he obliges himself to interpose as mediator in disputes between the cantons, and to employ force, if necessary, against the contumacious party.

So far as the peculiarity of their case will admit of comparison with that of the United States, it serves to confirm the principle intended to be established. Whatever efficacy the union may have had in ordinary cases, it appears that the moment a cause of difference sprang up, capable of trying its strength, it failed. The controversies on the subject of religion, which in three instances have kindled violent and bloody contests, may be said, in fact, to have severed the league. The Protestant and Catholic cantons have since had their separate diets, where all the most important concerns are adjusted, and which have left the general diet little other business than to take care of the common bailages.

That separation had another consequence, which merits attention. It produced opposite alliances with foreign powers: of Berne, at the head of the Protestant association, with the United Provinces; and of Luzerne, at the head of the Catholic association, with France.

PUBLIUS.

The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
From the New York Packet.
Tuesday, December 11, 1787.

Author: Alexander Hamilton and James Madison

To the People of the State of New York:

THE United Netherlands are a confederacy of republics, or rather of aristocracies of a very remarkable texture, yet confirming all the lessons derived from those which we have already reviewed.

The union is composed of seven coequal and sovereign states, and each state or province is a composition of equal and independent cities. In all important cases, not only the provinces but the cities must be unanimous.

The sovereignty of the Union is represented by the States-General, consisting usually of about fifty deputies appointed by the provinces. They hold their seats, some for life, some for six, three, and one years; from two provinces they continue in appointment during pleasure.

The States-General have authority to enter into treaties and alliances; to make war and peace; to raise armies and equip fleets; to ascertain quotas and demand contributions. In all these cases, however, unanimity and the sanction of their constituents are requisite. They have authority to appoint and receive ambassadors; to execute treaties and alliances already formed; to provide for the collection of duties on imports and exports; to regulate the mint, with a saving to the provincial rights; to govern as sovereigns the dependent territories. The provinces are restrained, unless with the general consent, from entering into foreign treaties; from establishing imposts injurious to others, or charging their neighbors with higher duties than their own subjects. A council of state, a chamber of accounts, with five colleges of admiralty, aid and fortify the federal administration.

The executive magistrate of the union is the stadtholder, who is now an hereditary prince. His principal weight and influence in the republic are derived from this independent title; from his great patrimonial estates; from his family connections with some of the chief potentates of Europe; and, more than all, perhaps, from his being stadtholder in the several provinces, as well as for the union; in which provincial quality he has the appointment of town magistrates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and has throughout the power of pardon.

As stadtholder of the union, he has, however, considerable prerogatives.

In his political capacity he has authority to settle disputes between the provinces, when other methods fail; to assist at the deliberations of the States-General, and at their particular conferences; to give audiences to foreign ambassadors, and to keep agents for his particular affairs at foreign courts.

In his military capacity he commands the federal troops, provides for garrisons, and in general regulates military affairs; disposes of all appointments, from colonels to ensigns, and of the governments and posts of fortified towns.

In his marine capacity he is admiral-general, and superintends and directs every thing relative to naval forces and other naval affairs; presides in the admiralties in person or by proxy; appoints lieutenant-admirals and other officers; and establishes councils of war, whose sentences are not executed till he approves them.

His revenue, exclusive of his private income, amounts to three hundred thousand florins. The standing army which he commands consists of about forty thousand men.

Such is the nature of the celebrated Belgic confederacy, as delineated on parchment. What are the characters which practice has stamped upon it? Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war.

It was long ago remarked by Grotius, that nothing but the hatred of his countrymen to the house of Austria kept them from being ruined by the vices of their constitution.

The union of Utrecht, says another respectable writer, 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.

The same instrument, says another, obliges each province to levy certain contributions; but this article never could, and probably never will, be executed; because the inland provinces, who have little commerce, cannot pay an equal quota.

In matters of contribution, it is the practice to waive the articles of the constitution. The danger of delay obliges the consenting provinces to furnish their quotas, without waiting for the others; and then to obtain reimbursement from the others, by deputations, which are frequent, or otherwise, as they can. The great wealth and influence of the province of Holland enable her to effect both these purposes.

It has more than once happened, that the deficiencies had to be ultimately collected at the point of the bayonet; a thing practicable, though dreadful, in a confedracy where one of the members exceeds in force all the rest, and where several of them are too small to meditate resistance; but utterly impracticable in one composed of members, several of which are equal to each other in strength and resources, and equal singly to a vigorous and persevering defense.

Foreign ministers, says Sir William Temple, who was himself a foreign minister, elude matters taken ad referendum, by tampering with the provinces and cities. In 1726, the treaty of Hanover was delayed by these means a whole year. Instances of a like nature are numerous and notorious.

In critical emergencies, the States-General are often compelled to overleap their constitutional bounds. In 1688, they concluded a treaty of themselves at the risk of their heads. The treaty of Westphalia, in 1648, by which their independence was formerly and finally recognized, was concluded without the consent of Zealand. Even as recently as the last treaty of peace with Great Britain, the constitutional principle of unanimity was departed from. A weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities.

Notwithstanding the calamities produced by the stadtholdership, it has been supposed that without his influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago have dissolved it. “Under such a government,” says the Abbe Mably, “the Union could never have subsisted, if the provinces had not a spring within themselves, capable of quickening their tardiness, and compelling them to the same way of thinking. This spring is the stadtholder.” It is remarked by Sir William Temple, “that in the intermissions of the stadtholdership, Holland, by her riches and her authority, which drew the others into a sort of dependence, supplied the place.”

These are not the only circumstances which have controlled the tendency to anarchy and dissolution. The surrounding powers impose an absolute necessity of union to a certain degree, at the same time that they nourish by their intrigues the constitutional vices which keep the republic in some degree always at their mercy.

The true patriots have long bewailed the fatal tendency of these vices, and have made no less than four regular experiments by EXTRAORDINARY ASSEMBLIES, convened for the special purpose, to apply a remedy. As many times has their laudable zeal found it impossible to UNITE THE PUBLIC COUNCILS in reforming the known, the acknowledged, the fatal evils of the existing constitution. Let us pause, my fellow-citizens, for one moment, over this melancholy and monitory lesson of history; and with the tear that drops for the calamities brought on mankind by their adverse opinions and selfish passions, let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness.

A design was also conceived of establishing a general tax to be administered by the federal authority. This also had its adversaries and failed.

This unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their distiny. All nations have their eyes fixed on the awful spectacle. The first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom and happiness: The next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own.

I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. 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 COERCION of the SWORD in place of the mild and salutary COERCION of the MAGISTRACY.

PUBLIUS.

Other Defects of the Present Confederation
For the Independent Journal.

Author: Alexander Hamilton

To the People of the State of New York:

HAVING in the three last numbers taken a summary review of the principal circumstances and events which have depicted the genius and fate of other confederate governments, I shall now proceed in the enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves. To form a safe and satisfactory judgment of the proper remedy, it is absolutely necessary that we should be well acquainted with the extent and malignity of the disease.

The next most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws. The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode. There is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the States, it must be by inference and construction, in the face of that part of the second article, by which it is declared, “that each State shall retain every power, jurisdiction, and right, not EXPRESSLY delegated to the United States in Congress assembled.” There is, doubtless, a striking absurdity in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing that supposition, preposterous as it may seem, or of contravening or explaining away a provision, which has been of late a repeated theme of the eulogies of those who oppose the new Constitution; and the want of which, in that plan, has been the subject of much plausible animadversion, and severe criticism. If we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the United States afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. It will appear, from the specimens which have been cited, that the American Confederacy, in this particular, stands discriminated from every other institution of a similar kind, and exhibits a new and unexampled phenomenon in the political world.

The want of a mutual guaranty of the State governments is another capital imperfection in the federal plan. There is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations.

The want of a guaranty, though it might in its consequences endanger the Union, does not so immediately attack its existence as the want of a constitutional sanction to its laws.

Without a guaranty 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. A successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the Union to the friends and supporters of the government. The tempestuous situation from which Massachusetts has scarcely emerged, evinces that dangers of this kind are not merely speculative. Who can determine what might have been the issue of her late convulsions, if the malcontents had been headed by a Caesar or by a Cromwell? Who can predict what effect a despotism, established in Massachusetts, would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York?

The inordinate pride of State importance has suggested to some minds an objection to the principle of a guaranty in the federal government, as involving an officious interference in the domestic concerns of the members. A scruple of this kind would deprive us of one of the principal advantages to be expected from union, and can only flow from a misapprehension of the nature of the provision itself. It could be no impediment to reforms of the State constitution by a majority of the people in a legal and peaceable mode. This right would remain undiminished. The guaranty could only operate against changes to be effected by violence. Towards the preventions of calamities of this kind, too many checks cannot be provided. The peace of society and the stability of government depend absolutely on the efficacy of the precautions adopted on this head. Where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the State. The natural cure for an ill-administration, in a popular or representative constitution, is a change of men. A guaranty by the national authority would be as much levelled against the usurpations of rulers as against the ferments and outrages of faction and sedition in the community.

The principle of regulating the contributions of the States to the common treasury by QUOTAS is another fundamental error in the Confederation. Its repugnancy to an adequate supply of the national exigencies has been already pointed out, and has sufficiently appeared from the trial which has been made of it. I speak of it now solely with a view to equality among the States. Those who have been accustomed to contemplate the circumstances which produce and constitute national wealth, must be satisfied that there is no common standard or barometer by which the degrees of it can be ascertained. Neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of State contributions, has any pretension to being a just representative. If we compare the wealth of the United Netherlands with that of Russia or Germany, or even of France, and if we at the same time compare the total value of the lands and the aggregate population of that contracted district with the total value of the lands and the aggregate population of the immense regions of either of the three last-mentioned countries, we shall at once discover that there is no comparison between the proportion of either of these two objects and that of the relative wealth of those nations. If the like parallel were to be run between several of the American States, it would furnish a like result. Let Virginia be contrasted with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, and we shall be convinced that the respective abilities of those States, in relation to revenue, bear little or no analogy to their comparative stock in lands or to their comparative population. The position may be equally illustrated by a similar process between the counties of the same State. No man who is acquainted with the State of New York will doubt that the active wealth of King’s County bears a much greater proportion to that of Montgomery than it would appear to be if we should take either the total value of the lands or the total number of the people as a criterion!

The wealth of nations depends upon an infinite variety of causes. Situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry, these circumstances and many more, too complex, minute, or adventitious to admit of a particular specification, occasion differences hardly conceivable in the relative opulence and riches of different countries. The consequence clearly is that there can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. The attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression.

This inequality would of itself be sufficient in America to work the eventual destruction of the Union, if any mode of enforcing a compliance with its requisitions could be devised. The suffering States would not long consent to remain associated upon a principle which distributes the public burdens with so unequal a hand, and which was calculated to impoverish and oppress the citizens of some States, while those of others would scarcely be conscious of the small proportion of the weight they were required to sustain. This, however, is an evil inseparable from the principle of quotas and requisitions.

There is no method of steering clear of this inconvenience, but by authorizing the national government to raise its own revenues in its own way. Imposts, excises, and, in general, all duties upon articles of consumption, may be compared to a fluid, which will, in time, find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. The rich may be extravagant, the poor can be frugal; and private oppression may always be avoided by a judicious selection of objects proper for such impositions. If inequalities should arise in some States from duties on particular objects, these will, in all probability, be counterbalanced by proportional inequalities in other States, from the duties on other objects. In the course of time and things, an equilibrium, as far as it is attainable in so complicated a subject, will be established everywhere. Or, if inequalities should still exist, they would neither be so great in their degree, so uniform in their operation, nor so odious in their appearance, as those which would necessarily spring from quotas, upon any scale that can possibly be devised.

It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty, that, “in political arithmetic, two and two do not always make four

.” If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. This forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them.

Impositions of this kind usually fall under the denomination of indirect taxes, and must for a long time constitute the chief part of the revenue raised in this country. Those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. Either the value of land, or the number of the people, may serve as a standard. The state of agriculture and the populousness of a country have been considered as nearly connected with each other. And, as a rule, for the purpose intended, numbers, in the view of simplicity and certainty, are entitled to a preference. In every country it is a herculean task to obtain a valuation of the land; in a country imperfectly settled and progressive in improvement, the difficulties are increased almost to impracticability. The expense of an accurate valuation is, in all situations, a formidable objection. In a branch of taxation where no limits to the discretion of the government are to be found in the nature of things, the establishment of a fixed rule, not incompatible with the end, may be attended with fewer inconveniences than to leave that discretion altogether at large.

PUBLIUS.

The Same Subject Continued: Other Defects of the Present Confederation
From the New York Packet.
Friday, December 14, 1787.

Author: Alexander Hamilton

To the People of the State of New York:

IN ADDITION to the defects already enumerated in the existing federal system, there are others of not less importance, which concur in rendering it altogether unfit for the administration of the affairs of the Union.

The want of a power to regulate commerce is by all parties allowed to be of the number. The utility of such a power has been anticipated under the first head of our inquiries; and for this reason, as well as from the universal conviction entertained upon the subject, little need be added in this place. It is indeed evident, on the most superficial view, that there is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence. The want of it has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the States. No nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the United States, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the Union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest. It is not, therefore, to be wondered at that Mr. Jenkinson, in ushering into the House of Commons a bill for regulating the temporary intercourse between the two countries, should preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the commerce of Great Britain, and that it would be prudent to persist in the plan until it should appear whether the American government was likely or not to acquire greater consistency.[1]

Several States have endeavored, by separate prohibitions, restrictions, and exclusions, to influence the conduct of that kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and dissimilar views in the State, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the same obstacles to a uniformity of measures continue to exist.

The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intcrcourse between the different parts of the Confederacy. “The commerce of the German empire [2] is in continual trammels from the multiplicity of the duties which the several princes and states exact 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.” Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.

The power of raising armies, by the most obvious construction of the articles of the Confederation, is merely a power of making requisitions upon the States for quotas of men. This practice in the course of the late war, was found replete with obstructions to a vigorous and to an economical system of defense. It gave birth to a competition between the States which created a kind of auction for men. In order to furnish the quotas required of them, they outbid each other till bounties grew to an enormous and insupportable size. The hope of a still further increase afforded an inducement to those who were disposed to serve to procrastinate their enlistment, and disinclined them from engaging for any considerable periods. Hence, slow and scanty levies of men, in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; continual fluctuations in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a disbanded army. Hence, also, those oppressive expedients for raising men which were upon several occasions practiced, and which nothing but the enthusiasm of liberty would have induced the people to endure.

This method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution of the burden. The States near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance from danger were, for the most part, as remiss as the others were diligent, in their exertions. The immediate pressure of this inequality was not in this case, as in that of the contributions of money, alleviated by the hope of a final liquidation. The States which did not pay their proportions of money might at least be charged with their deficiencies; but no account could be formed of the deficiencies in the supplies of men. We shall not, however, see much reason to reget the want of this hope, when we consider how little prospect there is, that the most delinquent States will ever be able to make compensation for their pecuniary failures. The system of quotas and requisitions, whether it be applied to men or money, is, in every view, a system of imbecility in the Union, and of inequality and injustice among the members.

The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Deleware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America [3]; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration.

It may be objected to this, that not seven but nine States, or two thirds of the whole number, must consent to the most important resolutions; and it may be thence inferred that nine States would always comprehend a majority of the Union. But this does not obviate the impropriety of an equal vote between States of the most unequal dimensions and populousness; nor is the inference accurate in point of fact; for we can enumerate nine States which contain less than a majority of the people [4]; and it is constitutionally possible that these nine may give the vote. Besides, there are matters of considerable moment determinable by a bare majority; and there are others, concerning which doubts have been entertained, which, if interpreted in favor of the sufficiency of a vote of seven States, would extend its operation to interests of the first magnitude. In addition to this, it is to be observed that there is a probability of an increase in the number of States, and no provision for a proportional augmentation of the ratio of votes.

But this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.

It is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. The mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.

Suppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another. Suppose the necessity of our situation demanded peace, and the interest or ambition of our ally led him to seek the prosecution of the war, with views that might justify us in making separate terms. In such a state of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace, where two thirds of all the votes were requisite to that object, than where a simple majority would suffice. In the first case, he would have to corrupt a smaller number; in the last, a greater number. Upon the same principle, it would be much easier for a foreign power with which we were at war to perplex our councils and embarrass our exertions. And, in a commercial view, we may be subjected to similar inconveniences. A nation, with which we might have a treaty of commerce, could with much greater facility prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves.

Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind.

In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments. How much this contributed to the ruin of the ancient commonwealths has been already delineated. It is well known that the deputies of the United Provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. The Earl of Chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major’s commission for one of those deputies. And in Sweden the parties were alternately bought by France and England in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in Europe, in a single day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled.

A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the came court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.

This is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. In this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from difference of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. As often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws; for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe their official existence. The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation?

In this review of the Confederation, I have confined myself to the exhibition of its most material defects; passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive. It must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading features and characters.

The organization of Congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the Union. A single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the federal head; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers which, even the moderate and more rational adversaries of the proposed Constitution admit, ought to reside in the United States. If that plan should not be adopted, and if the necessity of the Union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its dissolution, the probability would be, that we should run into the project of conferring supplementary powers upon Congress, as they are now constituted; and either the machine, from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force an energy, as necessity might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. Thus, we should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect to be, solicitous to avert.

It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a PARTY to a COMPACT has a right to revoke that COMPACT, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.

PUBLIUS.

The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union
From the New York Packet.
Tuesday, December 18, 1787.

Author: Alexander Hamilton

To the People of the State of New York:

THE necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union, is the point at the examination of which we are now arrived.

This inquiry will naturally divide itself into three branches the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. Its distribution and organization will more properly claim our attention under the succeeding head.

The principal purposes to be answered by union are these the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.

The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.

This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the MEANS ought to be proportioned to the END; the persons, from whose agency the attainment of any END is expected, ought to possess the MEANS by which it is to be attained.

Whether there ought to be a federal government intrusted with the care of the common defense, is a question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be clothed with all the powers requisite to complete execution of its trust. And unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the FORMATION, DIRECTION, or SUPPORT of the NATIONAL FORCES.

Defective as the present Confederation has been proved to be, this principle appears to have been fully recognized by the framers of it; though they have not made proper or adequate provision for its exercise. Congress have an unlimited discretion to make requisitions of men and money; to govern the army and navy; to direct their operations. As their requisitions are made constitutionally binding upon the States, who are in fact under the most solemn obligations to furnish the supplies required of them, the intention evidently was that the United States should command whatever resources were by them judged requisite to the “common defense and general welfare.” It was presumed that a sense of their true interests, and a regard to the dictates of good faith, would be found sufficient pledges for the punctual performance of the duty of the members to the federal head.

The experiment has, however, demonstrated that this expectation was ill-founded and illusory; and the observations, made under the last head, will, I imagine, have sufficed to convince the impartial and discerning, that there is an absolute necessity for an entire change in the first principles of the system; that if we are in earnest about giving the Union energy and duration, we must abandon the vain project of legislating upon the States in their collective capacities; we must extend the laws of the federal government to the individual citizens of America; we must discard the fallacious scheme of quotas and requisitions, as equally impracticable and unjust. The result from all this is that the Union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments.

If the circumstances of our country are such as to demand a compound instead of a simple, a confederate instead of a sole, government, the essential point which will remain to be adjusted will be to discriminate the OBJECTS, as far as it can be done, which shall appertain to the different provinces or departments of power; allowing to each the most ample authority for fulfilling the objects committed to its charge. Shall the Union be constituted the guardian of the common safety? Are fleets and armies and revenues necessary to this purpose? The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them. The same must be the case in respect to commerce, and to every other matter to which its jurisdiction is permitted to extend. Is the administration of justice between the citizens of the same State the proper department of the local governments? These must possess all the authorities which are connected with this object, and with every other that may be allotted to their particular cognizance and direction. Not to confer in each case a degree of power commensurate to the end, would be to violate the most obvious rules of prudence and propriety, and improvidently to trust the great interests of the nation to hands which are disabled from managing them with vigor and success.

Who is likely to make suitable provisions for the public defense, as that body to which the guardianship of the public safety is confided; which, as the centre of information, will best understand the extent and urgency of the dangers that threaten; as the representative of the WHOLE, will feel itself most deeply interested in the preservation of every part; which, from the responsibility implied in the duty assigned to it, will be most sensibly impressed with the necessity of proper exertions; and which, by the extension of its authority throughout the States, can alone establish uniformity and concert in the plans and measures by which the common safety is to be secured? Is there not a manifest inconsistency in devolving upon the federal government the care of the general defense, and leaving in the State governments the EFFECTIVE powers by which it is to be provided for? Is not a want of co-operation the infallible consequence of such a system? And will not weakness, disorder, an undue distribution of the burdens and calamities of war, an unnecessary and intolerable increase of expense, be its natural and inevitable concomitants? Have we not had unequivocal experience of its effects in the course of the revolution which we have just accomplished?

Every view we may take of the subject, as candid inquirers after truth, will serve to convince us, that it is both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects which are intrusted to its management. It will indeed deserve the most vigilant and careful attention of the people, to see that it be modeled in such a manner as to admit of its being safely vested with the requisite powers. If any plan which has been, or may be, offered to our consideration, should not, upon a dispassionate inspection, be found to answer this description, it ought to be rejected. A government, the constitution of which renders it unfit to be trusted with all the powers which a free people OUGHT TO DELEGATE TO ANY GOVERNMENT, would be an unsafe and improper depositary of the NATIONAL INTERESTS. Wherever THESE can with propriety be confided, the coincident powers may safely accompany them. This is the true result of all just reasoning upon the subject. And the adversaries of the plan promulgated by the convention ought to have confined themselves to showing, that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people. They ought not to have wandered into inflammatory declamations and unmeaning cavils about the extent of the powers. The POWERS are not too extensive for the OBJECTS of federal administration, or, in other words, for the management of our NATIONAL INTERESTS; nor can any satisfactory argument be framed to show that they are chargeable with such an excess. If it be true, as has been insinuated by some of the writers on the other side, that the difficulty arises from the nature of the thing, and that the extent of the country will not permit us to form a government in which such ample powers can safely be reposed, it would prove that we ought to contract our views, and resort to the expedient of separate confederacies, which will move within more practicable spheres. For the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust it to the authorities which are indispensible to their proper and efficient management. Let us not attempt to reconcile contradictions, but firmly embrace a rational alternative.

I trust, however, that the impracticability of one general system cannot be shown. I am greatly mistaken, if any thing of weight has yet been advanced of this tendency; and I flatter myself, that the observations which have been made in the course of these papers have served to place the reverse of that position in as clear a light as any matter still in the womb of time and experience can be susceptible of. This, at all events, must be evident, that the very difficulty itself, drawn from the extent of the country, is the strongest argument in favor of an energetic government; for any other can certainly never preserve the Union of so large an empire. If we embrace the tenets of those who oppose the adoption of the proposed Constitution, as the standard of our political creed, we cannot fail to verify the gloomy doctrines which predict the impracticability of a national system pervading entire limits of the present Confederacy.

PUBLIUS.

The Powers Necessary to the Common Defense Further Considered
For the Independent Journal.

Author: Alexander Hamilton

To the People of the State of New York:

To THE powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, I have met with but one specific objection, which, if I understand it right, is this, that proper provision has not been made against the existence of standing armies in time of peace; an objection which, I shall now endeavor to show, rests on weak and unsubstantial foundations.

It has indeed been brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument; without even the sanction of theoretical opinions; in contradiction to the practice of other free nations, and to the general sense of America, as expressed in most of the existing constitutions. The proprietory of this remark will appear, the moment it is recollected that the objection under consideration turns upon a supposed necessity of restraining the LEGISLATIVE authority of the nation, in the article of military establishments; a principle unheard of, except in one or two of our State constitutions, and rejected in all the rest.

A stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature.

If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.

Disappointed in his first surmise, the person I have supposed would be apt to pursue his conjectures a little further. He would naturally say to himself, it is impossible that all this vehement and pathetic declamation can be without some colorable pretext. It must needs be that this people, so jealous of their liberties, have, in all the preceding models of the constitutions which they have established, inserted the most precise and rigid precautions on this point, the omission of which, in the new plan, has given birth to all this apprehension and clamor.

If, under this impression, he proceeded to pass in review the several State constitutions, how great would be his disappointment to find that TWO ONLY of them[1] contained an interdiction of standing armies in time of peace; that the other eleven had either observed a profound silence on the subject, or had in express terms admitted the right of the Legislature to authorize their existence.

Still, however he would be persuaded that there must be some plausible foundation for the cry raised on this head. He would never be able to imagine, while any source of information remained unexplored, that it was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous. It would probably occur to him, that he would be likely to find the precautions he was in search of in the primitive compact between the States. Here, at length, he would expect to meet with a solution of the enigma. No doubt, he would observe to himself, the existing Confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions.

If he should now apply himself to a careful and critical survey of the articles of Confederation, his astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with jealous circumspection, restricted the authority of the State legislatures in this particular, had not imposed a single restraint on that of the United States. If he happened to be a man of quick sensibility, or ardent temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all sincere lovers of their country! How else, he would say, could the authors of them have been tempted to vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the general sense of America as declared in its different forms of government, and in which it has even superadded a new and powerful guard unknown to any of them? If, on the contrary, he happened to be a man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would lament, that in a matter so interesting to the happiness of millions, the true merits of the question should be perplexed and entangled by expedients so unfriendly to an impartial and right determination. Even such a man could hardly forbear remarking, that a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings.

But however little this objection may be countenanced, even by precedents among ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. From a close examination it will appear that restraints upon the discretion of the legislature in respect to military establishments in time of peace, would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be observed.

Though a wide ocean separates the United States from Europe, yet there are various considerations that warn us against an excess of confidence or security. On one side of us, and stretching far into our rear, are growing settlements subject to the dominion of Britain. On the other side, and extending to meet the British settlements, are colonies and establishments subject to the dominion of Spain. This situation and the vicinity of the West India Islands, belonging to these two powers create between them, in respect to their American possessions and in relation to us, a common interest. The savage tribes on our Western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. The improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors. Britain and Spain are among the principal maritime powers of Europe. A future concert of views between these nations ought not to be regarded as improbable. The increasing remoteness of consanguinity is every day diminishing the force of the family compact between France and Spain. And politicians have ever with great reason considered the ties of blood as feeble and precarious links of political connection. These circumstances combined, admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger.

Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our Western frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens. The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. Here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature.

In proportion to our increase in strength, it is probable, nay, it may be said certain, that Britain and Spain would augment their military establishments in our neighborhood. If we should not be willing to be exposed, in a naked and defenseless condition, to their insults and encroachments, we should find it expedient to increase our frontier garrisons in some ratio to the force by which our Western settlements might be annoyed. There are, and will be, particular posts, the possession of which will include the command of large districts of territory, and facilitate future invasions of the remainder. It may be added that some of those posts will be keys to the trade with the Indian nations. Can any man think it would be wise to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part would be to desert all the usual maxims of prudence and policy.

If we mean to be a commercial people, or even to be secure on our Atlantic side, we must endeavor, as soon as possible, to have a navy. To this purpose there must be dock-yards and arsenals; and for the defense of these, fortifications, and probably garrisons. When a nation has become so powerful by sea that it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose; but where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an indispensable security against descents for the destruction of the arsenals and dock-yards, and sometimes of the fleet itself.

PUBLIUS.

The Same Subject Continued: The Powers Necessary to the Common Defense Further Considered
From the New York Packet.
Friday, December 21, 1787.

Author: Alexander Hamilton

To the People of the State of New York:

IT MAY perhaps be urged that the objects enumerated in the preceding number ought to be provided for by the State governments, under the direction of the Union. But this would be, in reality, an inversion of the primary principle of our political association, as it would in practice transfer the care of the common defense from the federal head to the individual members: a project oppressive to some States, dangerous to all, and baneful to the Confederacy.

The territories of Britain, Spain, and of the Indian nations in our neighborhood do not border on particular States, but encircle the Union from Maine to Georgia. The danger, though in different degrees, is therefore common. And the means of guarding against it ought, in like manner, to be the objects of common councils and of a common treasury. It happens that some States, from local situation, are more directly exposed. New York is of this class. Upon the plan of separate provisions, New York would have to sustain the whole weight of the establishments requisite to her immediate safety, and to the mediate or ultimate protection of her neighbors. This would neither be equitable as it respected New York nor safe as it respected the other States. Various inconveniences would attend such a system. The States, to whose lot it might fall to support the necessary establishments, would be as little able as willing, for a considerable time to come, to bear the burden of competent provisions. The security of all would thus be subjected to the parsimony, improvidence, or inability of a part. If the resources of such part becoming more abundant and extensive, its provisions should be proportionally enlarged, the other States would quickly take the alarm at seeing the whole military force of the Union in the hands of two or three of its members, and those probably amongst the most powerful. They would each choose to have some counterpoise, and pretenses could easily be contrived. In this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size; and being at the separate disposal of the members, they would be engines for the abridgment or demolition of the national authcrity.

Reasons have been already given to induce a supposition that the State governments will too naturally be prone to a rivalship with that of the Union, the foundation of which will be the love of power; and that in any contest between the federal head and one of its members the people will be most apt to unite with their local government. If, in addition to this immense advantage, the ambition of the members should be stimulated by the separate and independent possession of military forces, it would afford too strong a temptation and too great a facility to them to make enterprises upon, and finally to subvert, the constitutional authority of the Union. On the other hand, the liberty of the people would be less safe in this state of things than in that which left the national forces in the hands of the national government. As far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.

The framers of the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, prohibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions.

There are other lights besides those already taken notice of, in which the impropriety of restraints on the discretion of the national legislature will be equally manifest. The design of the objection, which has been mentioned, is to preclude standing armies in time of peace, though we have never been informed how far it is designed the prohibition should extend; whether to raising armies as well as to KEEPING THEM UP in a season of tranquillity or not. If it be confined to the latter it will have no precise signification, and it will be ineffectual for the purpose intended. When armies are once raised what shall be denominated “keeping them up,” contrary to the sense of the Constitution? What time shall be requisite to ascertain the violation? Shall it be a week, a month, a year? Or shall we say they may be continued as long as the danger which occasioned their being raised continues? This would be to admit that they might be kept up IN TIME OF PEACE, against threatening or impending danger, which would be at once to deviate from the literal meaning of the prohibition, and to introduce an extensive latitude of construction. Who shall judge of the continuance of the danger? This must undoubtedly be submitted to the national government, and the matter would then be brought to this issue, that the national government, to provide against apprehended danger, might in the first instance raise troops, and might afterwards keep them on foot as long as they supposed the peace or safety of the community was in any degree of jeopardy. It is easy to perceive that a discretion so latitudinary as this would afford ample room for eluding the force of the provision.

The supposed utility of a provision of this kind can only be founded on the supposed probability, or at least possibility, of a combination between the executive and the legislative, in some scheme of usurpation. Should this at any time happen, how easy would it be to fabricate pretenses of approaching danger! Indian hostilities, instigated by Spain or Britain, would always be at hand. Provocations to produce the desired appearances might even be given to some foreign power, and appeased again by timely concessions. If we can reasonably presume such a combination to have been formed, and that the enterprise is warranted by a sufficient prospect of success, the army, when once raised, from whatever cause, or on whatever pretext, may be applied to the execution of the project.

If, to obviate this consequence, it should be resolved to extend the prohibition to the RAISING of armies in time of peace, the United States would then exhibit the most extraordinary spectacle which the world has yet seen, that of a nation incapacitated by its Constitution to prepare for defense, before it was actually invaded. As the ceremony of a formal denunciation of war has of late fallen into disuse, the presence of an enemy within our territories must be waited for, as the legal warrant to the government to begin its levies of men for the protection of the State. We must receive the blow, before we could even prepare to return it. All that kind of policy by which nations anticipate distant danger, and meet the gathering storm, must be abstained from, as contrary to the genuine maxims of a free government. We must expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and defenseless prey, because we are afraid that rulers, created by our choice, dependent on our will, might endanger that liberty, by an abuse of the means necessary to its preservation.

Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perserverance, by time, and by practice.

All violent policy, as it is contrary to the natural and experienced course of human affairs, defeats itself. Pennsylvania, at this instant, affords an example of the truth of this remark. The Bill of Rights of that State declares that standing armies are dangerous to liberty, and ought not to be kept up in time of peace. Pennsylvania, nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, has resolved to raise a body of troops; and in all probability will keep them up as long as there is any appearance of danger to the public peace. The conduct of Massachusetts affords a lesson on the same subject, though on different ground. That State (without waiting for the sanction of Congress, as the articles of the Confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt. The particular constitution of Massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct us that cases are likely to occur under our government, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society, and that it is therefore improper in this respect to control the legislative discretion. It also teaches us, in its application to the United States, how little the rights of a feeble government are likely to be respected, even by its own constituents. And it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity.

It was a fundamental maxim of the Lacedaemonian commonwealth, that the post of admiral should not be conferred twice on the same person. The Peloponnesian confederates, having suffered a severe defeat at sea from the Athenians, demanded Lysander, who had before served with success in that capacity, to command the combined fleets. The Lacedaemonians, to gratify their allies, and yet preserve the semblance of an adherence to their ancient institutions, had recourse to the flimsy subterfuge of investing Lysander with the real power of admiral, under the nominal title of vice-admiral. This instance is selected from among a multitude that might be cited to confirm the truth already advanced and illustrated by domestic examples; which is, that nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society. Wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable.

PUBLIUS.

The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered
For the Independent Journal.

Author: Alexander Hamilton

To the People of the State of New York:

IT WAS a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights. A failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better.

The idea of restraining the legislative authority, in the means of providing for the national defense, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened. We have seen, however, that it has not had thus far an extensive prevalency; that even in this country, where it made its first appearance, Pennsylvania and North Carolina are the only two States by which it has been in any degree patronized; and that all the others have refused to give it the least countenance; wisely judging that confidence must be placed somewhere; that the necessity of doing it, is implied in the very act of delegating power; and that it is better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority. The opponents of the proposed Constitution combat, in this respect, the general decision of America; and instead of being taught by experience the propriety of correcting any extremes into which we may have heretofore run, they appear disposed to conduct us into others still more dangerous, and more extravagant. As if the tone of government had been found too high, or too rigid, the doctrines they teach are calculated to induce us to depress or to relax it, by expedients which, upon other occasions, have been condemned or forborne. It may be affirmed without the imputation of invective, that if the principles they inculcate, on various points, could so far obtain as to become the popular creed, they would utterly unfit the people of this country for any species of government whatever. But a danger of this kind is not to be apprehended. The citizens of America have too much discernment to be argued into anarchy. And I am much mistaken, if experience has not wrought a deep and solemn conviction in the public mind, that greater energy of government is essential to the welfare and prosperity of the community.

It may not be amiss in this place concisely to remark the origin and progress of the idea, which aims at the exclusion of military establishments in time of peace. Though in speculative minds it may arise from a contemplation of the nature and tendency of such institutions, fortified by the events that have happened in other ages and countries, yet as a national sentiment, it must be traced to those habits of thinking which we derive from the nation from whom the inhabitants of these States have in general sprung.

In England, for a long time after the Norman Conquest, the authority of the monarch was almost unlimited. Inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. But it was not till the revolution in 1688, which elevated the Prince of Orange to the throne of Great Britain, that English liberty was completely triumphant. As incident to the undefined power of making war, an acknowledged prerogative of the crown, Charles II. had, by his own authority, kept on foot in time of peace a body of 5,000 regular troops. And this number James II. increased to 30,000; who were paid out of his civil list. At the revolution, to abolish the exercise of so dangerous an authority, it became an article of the Bill of Rights then framed, that “the raising or keeping a standing army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law.”

In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. The patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. They were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community.

From the same source, the people of America may be said to have derived an hereditary impression of danger to liberty, from standing armies in time of peace. The circumstances of a revolution quickened the public sensibility on every point connected with the security of popular rights, and in some instances raise the warmth of our zeal beyond the degree which consisted with the due temperature of the body politic. The attempts of two of the States to restrict the authority of the legislature in the article of military establishments, are of the number of these instances. The principles which had taught us to be jealous of the power of an hereditary monarch were by an injudicious excess extended to the representatives of the people in their popular assemblies. Even in some of the States, where this error was not adopted, we find unnecessary declarations that standing armies ought not to be kept up, in time of peace, WITHOUT THE CONSENT OF THE LEGISLATURE. I call them unnecessary, because the reason which had introduced a similar provision into the English Bill of Rights is not applicable to any of the State constitutions. The power of raising armies at all, under those constitutions, can by no construction be deemed to reside anywhere else, than in the legislatures themselves; and it was superfluous, if not absurd, to declare that a matter should not be done without the consent of a body, which alone had the power of doing it. Accordingly, in some of these constitutions, and among others, in that of this State of New York, which has been justly celebrated, both in Europe and America, as one of the best of the forms of government established in this country, there is a total silence upon the subject.

It is remarkable, that even in the two States which seem to have meditated an interdiction of military establishments in time of peace, the mode of expression made use of is rather cautionary than prohibitory. It is not said, that standing armies SHALL NOT BE kept up, but that they OUGHT NOT to be kept up, in time of peace. This ambiguity of terms appears to have been the result of a conflict between jealousy and conviction; between the desire of excluding such establishments at all events, and the persuasion that an absolute exclusion would be unwise and unsafe.

Can it be doubted that such a provision, whenever the situation of public affairs was understood to require a departure from it, would be interpreted by the legislature into a mere admonition, and would be made to yield to the necessities or supposed necessities of the State? Let the fact already mentioned, with respect to Pennsylvania, decide. What then (it may be asked) is the use of such a provision, if it cease to operate the moment there is an inclination to disregard it?

Let us examine whether there be any comparison, in point of efficacy, between the provision alluded to and that which is contained in the new Constitution, for restraining the appropriations of money for military purposes to the period of two years. The former, by aiming at too much, is calculated to effect nothing; the latter, by steering clear of an imprudent extreme, and by being perfectly compatible with a proper provision for the exigencies of the nation, will have a salutary and powerful operation.

The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. As the spirit of party, in different degrees, must be expected to infect all political bodies, there will be, no doubt, persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. The provision for the support of a military force will always be a favorable topic for declamation. As often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. Independent of parties in the national legislature itself, as often as the period of discussion arrived, the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.

Schemes to subvert the liberties of a great community REQUIRE TIME to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable, that every man, the instant he took his seat in the national Senate or House of Representatives, would commence a traitor to his constituents and to his country? Can it be supposed that there would not be found one man, discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? If such presumptions can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person.

If such suppositions could even be reasonably made, still the concealment of the design, for any duration, would be impracticable. It would be announced, by the very circumstance of augmenting the army to so great an extent in time of profound peace. What colorable reason could be assigned, in a country so situated, for such vast augmentations of the military force? It is impossible that the people could be long deceived; and the destruction of the project, and of the projectors, would quickly follow the discovery.

It has been said that the provision which limits the appropriation of money for the support of an army to the period of two years would be unavailing, because the Executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature. But the question again recurs, upon what pretense could he be put in possession of a force of that magnitude in time of peace? If we suppose it to have been created in consequence of some domestic insurrection or foreign war, then it becomes a case not within the principles of the objection; for this is levelled against the power of keeping up troops in time of peace. Few persons will be so visionary as seriously to contend that military forces ought not to be raised to quell a rebellion or resist an invasion; and if the defense of the community under such circumstances should make it necessary to have an army so numerous as to hazard its liberty, this is one of those calamaties for which there is neither preventative nor cure. It cannot be provided against by any possible form of government; it might even result from a simple league offensive and defensive, if it should ever be necessary for the confederates or allies to form an army for common defense.

But it is an evil infinitely less likely to attend us in a united than in a disunited state; nay, it may be safely asserted that it is an evil altogether unlikely to attend us in the latter situation. It is not easy to conceive a possibility that dangers so formidable can assail the whole Union, as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. But in a state of disunion (as has been fully shown in another place), the contrary of this supposition would become not only probable, but almost unavoidable.

PUBLIUS.

The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered
From the New York Packet.
Tuesday, December 25, 1787.

Author: Alexander Hamilton

To the People of the State of New York:

IT HAS been urged, in different shapes, that a Constitution of the kind proposed by the convention cannot operate without the aid of a military force to execute its laws. This, however, like most other things that have been alleged on that side, rests on mere general assertion, unsupported by any precise or intelligible designation of the reasons upon which it is founded. As far as I have been able to divine the latent meaning of the objectors, it seems to originate in a presupposition that the people will be disinclined to the exercise of federal authority in any matter of an internal nature. Waiving any exception that might be taken to the inaccuracy or inexplicitness of the distinction between internal and external, let us inquire what ground there is to presuppose that disinclination in the people. Unless we presume at the same time that the powers of the general government will be worse administered than those of the State government, there seems to be no room for the presumption of ill-will, disaffection, or opposition in the people. I believe it may be laid down as a general rule that their confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration. It must be admitted that there are exceptions to this rule; but these exceptions depend so entirely on accidental causes, that they cannot be considered as having any relation to the intrinsic merits or demerits of a constitution. These can only be judged of by general principles and maxims.

Various reasons have been suggested, in the course of these papers, to induce a probability that the general government will be better administered than the particular governments; the principal of which reasons are that the extension of the spheres of election will present a greater option, or latitude of choice, to the people; that through the medium of the State legislatures which are select bodies of men, and which are to appoint the members of the national Senate there is reason to expect that this branch will generally be composed with peculiar care and judgment; that these circumstances promise greater knowledge and more extensive information in the national councils, and that they will be less apt to be tainted by the spirit of faction, and more out of the reach of those occasional ill-humors, or temporary prejudices and propensities, which, in smaller societies, frequently contaminate the public councils, beget injustice and oppression of a part of the community, and engender schemes which, though they gratify a momentary inclination or desire, terminate in general distress, dissatisfaction, and disgust. Several additional reasons of considerable force, to fortify that probability, will occur when we come to survey, with a more critical eye, the interior structure of the edifice which we are invited to erect. It will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the Union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members.

The hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionably strong discouragement to it. Will not the government of the Union, which, if possessed of a due degree of power, can call to its aid the collective resources of the whole Confederacy, be more likely to repress the FORMER sentiment and to inspire the LATTER, than that of a single State, which can only command the resources within itself? A turbulent faction in a State may easily suppose itself able to contend with the friends to the government in that State; but it can hardly be so infatuated as to imagine itself a match for the combined efforts of the Union. If this reflection be just, there is less danger of resistance from irregular combinations of individuals to the authority of the Confederacy than to that of a single member.

I will, in this place, hazard an observation, which will not be the less just because to some it may appear new; which is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. Man is very much a creature of habit. A thing that rarely strikes his senses will generally have but little influence upon his mind. A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people. The inference is, that the authority of the Union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. The more it circulates through those channls and currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of compulsion.

One thing, at all events, must be evident, that a government like the one proposed would bid much fairer to avoid the necessity of using force, than that species of league contend for by most of its opponents; the authority of which should only operate upon the States in their political or collective capacities. It has been shown that in such a Confederacy there can be no sanction for the laws but force; that frequent delinquencies in the members are the natural offspring of the very frame of the government; and that as often as these happen, they can only be redressed, if at all, by war and violence.

The plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws. It is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which they might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each State, in addition to the influence on public opinion which will result from the important consideration of its having power to call to its assistance and support the resources of the whole Union. It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws. [1] Any man who will pursue, by his own reflections, the consequences of this situation, will perceive that there is good ground to calculate upon a regular and peaceable execution of the laws of the Union, if its powers are administered with a common share of prudence. If we will arbitrarily suppose the contrary, we may deduce any inferences we please from the supposition; for it is certainly possible, by an injudicious exercise of the authorities of the best government that ever was, or ever can be instituted, to provoke and precipitate the people into the wildest excesses. But though the adversaries of the proposed Constitution should presume that the national rulers would be insensible to the motives of public good, or to the obligations of duty, I would still ask them how the interests of ambition, or the views of encroachment, can be promoted by such a conduct?

PUBLIUS.

The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered
For the Independent Journal.

Author: Alexander Hamilton

To the People of the State of New York:

THAT there may happen cases in which the national government may be necessitated to resort to force, cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction.

Should such emergencies at any time happen under the national government, there could be no remedy but force. The means to be employed must be proportioned to the extent of the mischief. If it should be a slight commotion in a small part of a State, the militia of the residue would be adequate to its suppression; and the national presumption is that they would be ready to do their duty. An insurrection, whatever may be its immediate cause, eventually endangers all government. Regard to the public peace, if not to the rights of the Union, would engage the citizens to whom the contagion had not communicated itself to oppose the insurgents; and if the general government should be found in practice conducive to the prosperity and felicity of the people, it were irrational to believe that they would be disinclined to its support.

If, on the contrary, the insurrection should pervade a whole State, or a principal part of it, the employment of a different kind of force might become unavoidable. It appears that Massachusetts found it necessary to raise troops for repressing the disorders within that State; that Pennsylvania, from the mere apprehension of commotions among a part of her citizens, has thought proper to have recourse to the same measure. Suppose the State of New York had been inclined to re-establish her lost jurisdiction over the inhabitants of Vermont, could she have hoped for success in such an enterprise from the efforts of the militia alone? Would she not have been compelled to raise and to maintain a more regular force for the execution of her design? If it must then be admitted that the necessity of recurring to a force different from the militia, in cases of this extraordinary nature, is applicable to the State governments themselves, why should the possibility, that the national government might be under a like necessity, in similar extremities, be made an objection to its existence? Is it not surprising that men who declare an attachment to the Union in the abstract, should urge as an objection to the proposed Constitution what applies with tenfold weight to the plan for which they contend; and what, as far as it has any foundation in truth, is an inevitable consequence of civil society upon an enlarged scale? Who would not prefer that possibility to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics?

Let us pursue this examination in another light. Suppose, in lieu of one general system, two, or three, or even four Confederacies were to be formed, would not the same difficulty oppose itself to the operations of either of these Confederacies? Would not each of them be exposed to the same casualties; and when these happened, be obliged to have recourse to the same expedients for upholding its authority which are objected to in a government for all the States? Would the militia, in this supposition, be more ready or more able to support the federal authority than in the case of a general union? All candid and intelligent men must, upon due consideration, acknowledge that the principle of the objection is equally applicable to either of the two cases; and that whether we have one government for all the States, or different governments for different parcels of them, or even if there should be an entire separation of the States, there might sometimes be a necessity to make use of a force constituted differently from the militia, to preserve the peace of the community and to maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions.

Independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, to say that the whole power of the proposed government is to be in the hands of the representatives of the people. This is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society.[1]

If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance.

The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. The natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. But in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!

It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.

The great extent of the country is a further security. We have already experienced its utility against the attacks of a foreign power. And it would have precisely the same effect against the enterprises of ambitious rulers in the national councils. If the federal army should be able to quell the resistance of one State, the distant States would have it in their power to make head with fresh forces. The advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed, and its resistance revive.

We should recollect that the extent of the military force must, at all events, be regulated by the resources of the country. For a long time to come, it will not be possible to maintain a large army; and as the means of doing this increase, the population and natural strength of the community will proportionably increase. When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.

PUBLIUS.

Concerning the Militia
From the Daily Advertiser.
Thursday, January 10, 1788

Author: Alexander Hamilton

To the People of the State of New York:

THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union “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.”

Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper.

In order to cast an odium upon the power of calling forth the militia to execute the laws of the Union, it has been remarked that there is nowhere any provision in the proposed Constitution for calling out the POSSE COMITATUS, to assist the magistrate in the execution of his duty, whence it has been inferred, that military force was intended to be his only auxiliary. There is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable opinion of the sincerity or fair dealing of their authors. The same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the POSSE COMITATUS. The latter, fortunately, is as much short of the truth as the former exceeds it. It would be as absurd to doubt, that a right to pass all laws NECESSARY AND PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. It being therefore evident that the supposition of a want of power to require the aid of the POSSE COMITATUS is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. What reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? What shall we think of the motives which could induce men of sense to reason in this manner? How shall we prevent a conflict between charity and judgment?

By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse:

“The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

“But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”

Thus differently from the adversaries of the proposed Constitution should I reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. But how the national legislature may reason on the point, is a thing which neither they nor I can foresee.

There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.

In reading many of the publications against the Constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes “Gorgons, hydras, and chimeras dire”; discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster.

A sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. That of New Hampshire is to be marched to Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake Champlain. Nay, the debts due to the French and Dutch are to be paid in militiamen instead of louis d’ors and ducats. At one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of Virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of Massachusetts; and that of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of America for infallible truths?

If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? Is this the way in which usurpers stride to dominion over a numerous and enlightened nation? Do they begin by exciting the detestation of the very instruments of their intended usurpations? Do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? Are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? Or are they the inflammatory ravings of incendiaries or distempered enthusiasts? If we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs.

In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. This was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association. If the power of affording it be placed under the direction of the Union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of selfpreservation to the too feeble impulses of duty and sympathy.

PUBLIUS.

Concerning the General Power of Taxation
From the New York Packet.
Friday, December 28, 1787.

Author: Alexander Hamilton

To the People of the State of New York:

IT HAS been already observed that the federal government ought to possess the power of providing for the support of the national forces; in which proposition was intended to be included the expense of raising troops, of building and equipping fleets, and all other expenses in any wise connected with military arrangements and operations. But these are not the only objects to which the jurisdiction of the Union, in respect to revenue, must necessarily be empowered to extend. It must embrace a provision for the support of the national civil list; for the payment of the national debts contracted, or that may be contracted; and, in general, for all those matters which will call for disbursements out of the national treasury. The conclusion is, that there must be interwoven, in the frame of the government, a general power of taxation, in one shape or another.

Money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. From a deficiency in this particular, one of two evils must ensue; either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and, in a short course of time, perish.

In the Ottoman or Turkish empire, the sovereign, though in other respects absolute master of the lives and fortunes of his subjects, has no right to impose a new tax. The consequence is that he permits the bashaws or governors of provinces to pillage the people without mercy; and, in turn, squeezes out of them the sums of which he stands in need, to satisfy his own exigencies and those of the state. In America, from a like cause, the government of the Union has gradually dwindled into a state of decay, approaching nearly to annihilation. Who can doubt, that the happiness of the people in both countries would be promoted by competent authorities in the proper hands, to provide the revenues which the necessities of the public might require?

The present Confederation, feeble as it is intended to repose in the United States, an unlimited power of providing for the pecuniary wants of the Union. But proceeding upon an erroneous principle, it has been done in such a manner as entirely to have frustrated the intention. Congress, by the articles which compose that compact (as has already been stated), are authorized to ascertain and call for any sums of money necessary, in their judgment, to the service of the United States; and their requisitions, if conformable to the rule of apportionment, are in every constitutional sense obligatory upon the States. These have no right to question the propriety of the demand; no discretion beyond that of devising the ways and means of furnishing the sums demanded. But though this be strictly and truly the case; though the assumption of such a right would be an infringement of the articles of Union; though it may seldom or never have been avowedly claimed, yet in practice it has been constantly exercised, and would continue to be so, as long as the revenues of the Confederacy should remain dependent on the intermediate agency of its members. What the consequences of this system have been, is within the knowledge of every man the least conversant in our public affairs, and has been amply unfolded in different parts of these inquiries. It is this which has chiefly contributed to reduce us to a situation, which affords ample cause both of mortification to ourselves, and of triumph to our enemies.

What remedy can there be for this situation, but in a change of the system which has produced it in a change of the fallacious and delusive system of quotas and requisitions? What substitute can there be imagined for this ignis fatuus in finance, but that of permitting the national government to raise its own revenues by the ordinary methods of taxation authorized in every well-ordered constitution of civil government? Ingenious men may declaim with plausibility on any subject; but no human ingenuity can point out any other expedient to rescue us from the inconveniences and embarrassments naturally resulting from defective supplies of the public treasury.

The more intelligent adversaries of the new Constitution admit the force of this reasoning; but they qualify their admission by a distinction between what they call INTERNAL and EXTERNAL taxation. The former they would reserve to the State governments; the latter, which they explain into commercial imposts, or rather duties on imported articles, they declare themselves willing to concede to the federal head. This distinction, however, would violate the maxim of good sense and sound policy, which dictates that every POWER ought to be in proportion to its OBJECT; and would still leave the general government in a kind of tutelage to the State governments, inconsistent with every idea of vigor or efficiency. Who can pretend that commercial imposts are, or would be, alone equal to the present and future exigencies of the Union? Taking into the account the existing debt, foreign and domestic, upon any plan of extinguishment which a man moderately impressed with the importance of public justice and public credit could approve, in addition to the establishments which all parties will acknowledge to be necessary, we could not reasonably flatter ourselves, that this resource alone, upon the most improved scale, would even suffice for its present necessities. Its future necessities admit not of calculation or limitation; and upon the principle, more than once adverted to, the power of making provision for them as they arise ought to be equally unconfined. I believe it may be regarded as a position warranted by the history of mankind, that, IN THE USUAL PROGRESS OF THINGS, THE NECESSITIES OF A NATION, IN EVERY STAGE OF ITS EXISTENCE, WILL BE FOUND AT LEAST EQUAL TO ITS RESOURCES.

To say that deficiencies may be provided for by requisitions upon the States, is on the one hand to acknowledge that this system cannot be depended upon, and on the other hand to depend upon it for every thing beyond a certain limit. Those who have carefully attended to its vices and deformities as they have been exhibited by experience or delineated in the course of these papers, must feel invincible repugnancy to trusting the national interests in any degree to its operation. Its inevitable tendency, whenever it is brought into activity, must be to enfeeble the Union, and sow the seeds of discord and contention between the federal head and its members, and between the members themselves. Can it be expected that the deficiencies would be better supplied in this mode than the total wants of the Union have heretofore been supplied in the same mode? It ought to be recollected that if less will be required from the States, they will have proportionably less means to answer the demand. If the opinions of those who contend for the distinction which has been mentioned were to be received as evidence of truth, one would be led to conclude that there was some known point in the economy of national affairs at which it would be safe to stop and to say: Thus far the ends of public happiness will be promoted by supplying the wants of government, and all beyond this is unworthy of our care or anxiety. How is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? How can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it undertake or execute any liberal or enlarged plans of public good?

Let us attend to what would be the effects of this situation in the very first war in which we should happen to be engaged. We will presume, for argument’s sake, that the revenue arising from the impost duties answers the purposes of a provision for the public debt and of a peace establishment for the Union. Thus circumstanced, a war breaks out. What would be the probable conduct of the government in such an emergency? Taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defense of the State? It is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety. To imagine that at such a crisis credit might be dispensed with, would be the extreme of infatuation. In the modern system of war, nations the most wealthy are obliged to have recourse to large loans. A country so little opulent as ours must feel this necessity in a much stronger degree. But who would lend to a government that prefaced its overtures for borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying? The loans it might be able to procure would be as limited in their extent as burdensome in their conditions. They would be made upon the same principles that usurers commonly lend to bankrupt and fraudulent debtors, with a sparing hand and at enormous premiums.

It may perhaps be imagined that, from the scantiness of the resources of the country, the necessity of diverting the established funds in the case supposed would exist, though the national government should possess an unrestrained power of taxation. But two considerations will serve to quiet all apprehension on this head: one is, that we are sure the resources of the community, in their full extent, will be brought into activity for the benefit of the Union; the other is, that whatever deficiences there may be, can without difficulty be supplied by loans.

The power of creating new funds upon new objects of taxation, by its own authority, would enable the national government to borrow as far as its necessities might require. Foreigners, as well as the citizens of America, could then reasonably repose confidence in its engagements; but to depend upon a government that must itself depend upon thirteen other governments for the means of fulfilling its contracts, when once its situation is clearly understood, would require a degree of credulity not often to be met with in the pecuniary transactions of mankind, and little reconcilable with the usual sharp-sightedness of avarice.

Reflections of this kind may have trifling weight with men who hope to see realized in America the halcyon scenes of the poetic or fabulous age; but to those who believe we are likely to experience a common portion of the vicissitudes and calamities which have fallen to the lot of other nations, they must appear entitled to serious attention. Such men must behold the actual situation of their country with painful solicitude, and deprecate the evils which ambition or revenge might, with too much facility, inflict upon it.

PUBLIUS.

The Same Subject Continued: Concerning the General Power of Taxation
From the New York Packet.
Tuesday, January 1, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

IN DISQUISITIONS of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind. Where it produces not this effect, it must proceed either from some defect or disorder in the organs of perception, or from the influence of some strong interest, or passion, or prejudice. Of this nature are the maxims in geometry, that “the whole is greater than its part; things equal to the same are equal to one another; two straight lines cannot enclose a space; and all right angles are equal to each other.” Of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation. And there are other truths in the two latter sciences which, if they cannot pretend to rank in the class of axioms, are yet such direct inferences from them, and so obvious in themselves, and so agreeable to the natural and unsophisticated dictates of common-sense, that they challenge the assent of a sound and unbiased mind, with a degree of force and conviction almost equally irresistible.

The objects of geometrical inquiry are so entirely abstracted from those pursuits which stir up and put in motion the unruly passions of the human heart, that mankind, without difficulty, adopt not only the more simple theorems of the science, but even those abstruse paradoxes which, however they may appear susceptible of demonstration, are at variance with the natural conceptions which the mind, without the aid of philosophy, would be led to entertain upon the subject. The INFINITE DIVISIBILITY of matter, or, in other words, the INFINITE divisibility of a FINITE thing, extending even to the minutest atom, is a point agreed among geometricians, though not less incomprehensible to common-sense than any of those mysteries in religion, against which the batteries of infidelity have been so industriously leveled.

But in the sciences of morals and politics, men are found far less tractable. To a certain degree, it is right and useful that this should be the case. Caution and investigation are a necessary armor against error and imposition. But this untractableness may be carried too far, and may degenerate into obstinacy, perverseness, or disingenuity. Though it cannot be pretended that the principles of moral and political knowledge have, in general, the same degree of certainty with those of the mathematics, yet they have much better claims in this respect than, to judge from the conduct of men in particular situations, we should be disposed to allow them. The obscurity is much oftener in the passions and prejudices of the reasoner than in the subject. Men, upon too many occasions, do not give their own understandings fair play; but, yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties.

How else could it happen (if we admit the objectors to be sincere in their opposition), that positions so clear as those which manifest the necessity of a general power of taxation in the government of the Union, should have to encounter any adversaries among men of discernment? Though these positions have been elsewhere fully stated, they will perhaps not be improperly recapitulated in this place, as introductory to an examination of what may have been offered by way of objection to them. They are in substance as follows:

A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people.

As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community.

As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies.

As theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the States in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes.

Did not experience evince the contrary, it would be natural to conclude that the propriety of a general power of taxation in the national government might safely be permitted to rest on the evidence of these propositions, unassisted by any additional arguments or illustrations. But we find, in fact, that the antagonists of the proposed Constitution, so far from acquiescing in their justness or truth, seem to make their principal and most zealous effort against this part of the plan. It may therefore be satisfactory to analyze the arguments with which they combat it.

Those of them which have been most labored with that view, seem in substance to amount to this: “It is not true, because the exigencies of the Union may not be susceptible of limitation, that its power of laying taxes ought to be unconfined. Revenue is as requisite to the purposes of the local administrations as to those of the Union; and the former are at least of equal importance with the latter to the happiness of the people. It is, therefore, as necessary that the State governments should be able to command the means of supplying their wants, as that the national government should possess the like faculty in respect to the wants of the Union. But an indefinite power of taxation in the LATTER might, and probably would in time, deprive the FORMER of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. As the laws of the Union are to become the supreme law of the land, as it is to have power to pass all laws that may be NECESSARY for carrying into execution the authorities with which it is proposed to vest it, the national government might at any time abolish the taxes imposed for State objects upon the pretense of an interference with its own. It might allege a necessity of doing this in order to give efficacy to the national revenues. And thus all the resources of taxation might by degrees become the subjects of federal monopoly, to the entire exclusion and destruction of the State governments.”

This mode of reasoning appears sometimes to turn upon the supposition of usurpation in the national government; at other times it seems to be designed only as a deduction from the constitutional operation of its intended powers. It is only in the latter light that it can be admitted to have any pretensions to fairness. The moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured. Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute scepticism and irresolution. I repeat here what I have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. The State governments, by their original constitutions, are invested with complete sovereignty. In what does our security consist against usurpation from that quarter? Doubtless in the manner of their formation, and in a due dependence of those who are to administer them upon the people. If the proposed construction of the federal government be found, upon an impartial examination of it, to be such as to afford, to a proper extent, the same species of security, all apprehensions on the score of usurpation ought to be discarded.

It should not be forgotten that a disposition in the State governments to encroach upon the rights of the Union is quite as probable as a disposition in the Union to encroach upon the rights of the State governments. What side would be likely to prevail in such a conflict, must depend on the means which the contending parties could employ toward insuring success. As in republics strength is always on the side of the people, and as there are weighty reasons to induce a belief that the State governments will commonly possess most influence over them, the natural conclusion is that such contests will be most apt to end to the disadvantage of the Union; and that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members. But it is evident that all conjectures of this kind must be extremely vague and fallible: and that it is by far the safest course to lay them altogether aside, and to confine our attention wholly to the nature and extent of the powers as they are delineated in the Constitution. Every thing beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments. Upon this ground, which is evidently the true one, it will not be difficult to obviate the objections which have been made to an indefinite power of taxation in the United States.

PUBLIUS.

The Same Subject Continued: Concerning the General Power of Taxation
From the Daily Advertiser.
Thursday, January 3, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

ALTHOUGH I am of opinion that there would be no real danger of the consequences which seem to be apprehended to the State governments from a power in the Union to control them in the levies of money, because I am persuaded that the sense of the people, the extreme hazard of provoking the resentments of the State governments, and a conviction of the utility and necessity of local administrations for local purposes, would be a complete barrier against the oppressive use of such a power; yet I am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual States should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. And making this concession, I affirm that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its Constitution.

An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT. I use these terms to distinguish this last case from another which might appear to resemble it, but which would, in fact, be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the POLICY of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority. These three cases of exclusive jurisdiction in the federal government may be exemplified by the following instances: The last clause but one in the eighth section of the first article provides expressly that Congress shall exercise “EXCLUSIVE LEGISLATION” over the district to be appropriated as the seat of government. This answers to the first case. The first clause of the same section empowers Congress “TO LAY AND COLLECT TAXES, DUTIES, IMPOSTS AND EXCISES”; and the second clause of the tenth section of the same article declares that, “NO STATE SHALL, without the consent of Congress, LAY ANY IMPOSTS OR DUTIES ON IMPORTS OR EXPORTS, except for the purpose of executing its inspection laws.” Hence would result an exclusive power in the Union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any State; in consequence of which qualification, it now only extends to the DUTIES ON IMPORTS. This answers to the second case. The third will be found in that clause which declares that Congress shall have power “to establish an UNIFORM RULE of naturalization throughout the United States.” This must necessarily be exclusive; because if each State had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE.

A case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. I mean the power of imposing taxes on all articles other than exports and imports. This, I contend, is manifestly a concurrent and coequal authority in the United States and in the individual States. There is plainly no expression in the granting clause which makes that power EXCLUSIVE in the Union. There is no independent clause or sentence which prohibits the States from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is to be deduced from the restraint laid upon the States in relation to duties on imports and exports. This restriction implies an admission that, if it were not inserted, the States would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the States remains undiminished. In any other view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant to the Union of the power of laying such duties implied the exclusion of the States, or even their subordination in this particular, there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; I mean that the States, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the Union. The restriction in question amounts to what lawyers call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and an AFFIRMANCE of another; a negation of the authority of the States to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. It would be mere sophistry to argue that it was meant to exclude them ABSOLUTELY from the imposition of taxes of the former kind, and to leave them at liberty to lay others SUBJECT TO THE CONTROL of the national legislature. The restraining or prohibitory clause only says, that they shall not, WITHOUT THE CONSENT OF CONGRESS, lay such duties; and if we are to understand this in the sense last mentioned, the Constitution would then be made to introduce a formal provision for the sake of a very absurd conclusion; which is, that the States, WITH THE CONSENT of the national legislature, might tax imports and exports; and that they might tax every other article, UNLESS CONTROLLED by the same body. If this was the intention, why not leave it, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the Union? It is evident that this could not have been the intention, and that it will not bear a construction of the kind.

As to a supposition of repugnancy between the power of taxation in the States and in the Union, it cannot be supported in that sense which would be requisite to work an exclusion of the States. It is, indeed, possible that a tax might be laid on a particular article by a State which might render it INEXPEDIENT that thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not, however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of sovereignty.

The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States. The tenth section of the first article consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary.

PUBLIUS.

The Same Subject Continued: Concerning the General Power of Taxation
From the Daily Advertiser.
Thursday, January 3, 1788

Author: Alexander Hamilton

To the People of the State of New York:

THE residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the following clause. The last clause of the eighth section of the first article of the plan under consideration authorizes the national legislature “to make all laws which shall be NECESSARY and PROPER for carrying into execution THE POWERS by that Constitution vested in the government of the United States, or in any department or officer thereof”; and the second clause of the sixth article declares, “that the Constitution and the laws of the United States made IN PURSUANCE THEREOF, and the treaties made by their authority shall be the SUPREME LAW of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.”

These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. 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 propermeans of executing such a power, but NECESSARY and PROPER laws?

This simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws NECESSARY and PROPER for the execution of that power; and what does the unfortunate and culumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws NECESSARY and PROPER to carry it into effect? I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.

But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimatb authorities of the Union. The Convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare.

But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the Federal legislature should attempt to vary the law of descent in any State, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the State? Suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a landtax imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its Constitution plainly supposes to exist in the State governments? If there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelop it in a cloud calculated to obscure the plainest and simplest truths.

But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a goverment, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.

Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the State, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the Constitution. As far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. It is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. The inference from the whole is, that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. It will be shown in the next paper that this CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the State authority to that of the Union.

PUBLIUS.

The Same Subject Continued: Concerning the General Power of Taxation
From the New York Packet.
Friday, January 4, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

I FLATTER myself it has been clearly shown in my last number that the particular States, under the proposed Constitution, would have COEQUAL authority with the Union in the article of revenue, except as to duties on imports. As this leaves open to the States far the greatest part of the resources of the community, there can be no color for the assertion that they would not possess means as abundant as could be desired for the supply of their own wants, independent of all external control. That the field is sufficiently wide will more fully appear when we come to advert to the inconsiderable share of the public expenses for which it will fall to the lot of the State governments to provide.

To argue upon abstract principles that this co-ordinate authority cannot exist, is to set up supposition and theory against fact and reality. However proper such reasonings might be to show that a thing OUGHT NOT TO EXIST, they are wholly to be rejected when they are made use of to prove that it does not exist contrary to the evidence of the fact itself. It is well known that in the Roman republic the legislative authority, in the last resort, resided for ages in two different political bodies not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebian. Many arguments might have been adduced to prove the unfitness of two such seemingly contradictory authorities, each having power to ANNUL or REPEAL the acts of the other. But a man would have been regarded as frantic who should have attempted at Rome to disprove their existence. It will be readily understood that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA. The former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed, the plebian interest had an entire predominancy. And yet these two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness.

In the case particularly under consideration, there is no such contradiction as appears in the example cited; there is no power on either side to annul the acts of the other. And in practice there is little reason to apprehend any inconvenience; because, in a short course of time, the wants of the States will naturally reduce themselves within A VERY NARROW COMPASS; and in the interim, the United States will, in all probability, find it convenient to abstain wholly from those objects to which the particular States would be inclined to resort.

To form a more precise judgment of the true merits of this question, it will be well to advert to the proportion between the objects that will require a federal provision in respect to revenue, and those which will require a State provision. We shall discover that the former are altogether unlimited, and that the latter are circumscribed within very moderate bounds. In pursuing this inquiry, we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity. It is true, perhaps, that a computation might be made with sufficient accuracy to answer the purpose of the quantity of revenue requisite to discharge the subsisting engagements of the Union, and to maintain those establishments which, for some time to come, would suffice in time of peace. But would it be wise, or would it not rather be the extreme of folly, to stop at this point, and to leave the government intrusted with the care of the national defense in a state of absolute incapacity to provide for the protection of the community against future invasions of the public peace, by foreign war or domestic convulsions? If, on the contrary, we ought to exceed this point, where can we stop, short of an indefinite power of providing for emergencies as they may arise? Though it is easy to assert, in general terms, the possibility of forming a rational judgment of a due provision against probable dangers, yet we may safely challenge those who make the assertion to bring forward their data, and may affirm that they would be found as vague and uncertain as any that could be produced to establish the probable duration of the world. Observations confined to the mere prospects of internal attacks can deserve no weight; though even these will admit of no satisfactory calculation: but if we mean to be a commercial people, it must form a part of our policy to be able one day to defend that commerce. The support of a navy and of naval wars would involve contingencies that must baffle all the efforts of political arithmetic.

Admitting that we ought to try the novel and absurd experiment in politics of tying up the hands of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations. A cloud has been for some time hanging over the European world. If it should break forth into a storm, who can insure us that in its progress a part of its fury would not be spent upon us? No reasonable man would hastily pronounce that we are entirely out of its reach. Or if the combustible materials that now seem to be collecting should be dissipated without coming to maturity, or if a flame should be kindled without extending to us, what security can we have that our tranquillity will long remain undisturbed from some other cause or from some other quarter? Let us recollect that peace or war will not always be left to our option; that however moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the ambition of others. Who could have imagined at the conclusion of the last war that France and Britain, wearied and exhausted as they both were, would so soon have looked with so hostile an aspect upon each other? To judge from the history of mankind, we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiments of peace; and that to model our political systems upon speculations of lasting tranquillity, is to calculate on the weaker springs of the human character.

What are the chief sources of expense in every government? What has occasioned that enormous accumulation of debts with which several of the European nations are oppressed? The answers plainly is, wars and rebellions; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society. The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense.

In the kingdom of Great Britain, where all the ostentatious apparatus of monarchy is to be provided for, not above a fifteenth part of the annual income of the nation is appropriated to the class of expenses last mentioned; the other fourteen fifteenths are absorbed in the payment of the interest of debts contracted for carrying on the wars in which that country has been engaged, and in the maintenance of fleets and armies. If, on the one hand, it should be observed that the expenses incurred in the prosecution of the ambitious enterprises and vainglorious pursuits of a monarchy are not a proper standard by which to judge of those which might be necessary in a republic, it ought, on the other hand, to be remarked that there should be as great a disproportion between the profusion and extravagance of a wealthy kingdom in its domestic administration, and the frugality and economy which in that particular become the modest simplicity of republican government. If we balance a proper deduction from one side against that which it is supposed ought to be made from the other, the proportion may still be considered as holding good.

But let us advert to the large debt which we have ourselves contracted in a single war, and let us only calculate on a common share of the events which disturb the peace of nations, and we shall instantly perceive, without the aid of any elaborate illustration, that there must always be an immense disproportion between the objects of federal and state expenditures. It is true that several of the States, separately, are encumbered with considerable debts, which are an excrescence of the late war. But this cannot happen again, if the proposed system be adopted; and when these debts are discharged, the only call for revenue of any consequence, which the State governments will continue to experience, will be for the mere support of their respective civil list; to which, if we add all contingencies, the total amount in every State ought to fall considerably short of two hundred thousand pounds.

In framing a government for posterity as well as ourselves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on permanent causes of expense. If this principle be a just one our attention would be directed to a provision in favor of the State governments for an annual sum of about two hundred thousand pounds; while the exigencies of the Union could be susceptible of no limits, even in imagination. In this view of the subject, by what logic can it be maintained that the local governments ought to command, in perpetuity, an EXCLUSIVE source of revenue for any sum beyond the extent of two hundred thousand pounds? To extend its power further, in EXCLUSION of the authority of the Union, would be to take the resources of the community out of those hands which stood in need of them for the public welfare, in order to put them into other hands which could have no just or proper occasion for them.

Suppose, then, the convention had been inclined to proceed upon the principle of a repartition of the objects of revenue, between the Union and its members, in PROPORTION to their comparative necessities; what particular fund could have been selected for the use of the States, that would not either have been too much or too little too little for their present, too much for their future wants? As to the line of separation between external and internal taxes, this would leave to the States, at a rough computation, the command of two thirds of the resources of the community to defray from a tenth to a twentieth part of its expenses; and to the Union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its expenses. If we desert this boundary and content ourselves with leaving to the States an exclusive power of taxing houses and lands, there would still be a great disproportion between the MEANS and the END; the possession of one third of the resources of the community to supply, at most, one tenth of its wants. If any fund could have been selected and appropriated, equal to and not greater than the object, it would have been inadequate to the discharge of the existing debts of the particular States, and would have left them dependent on the Union for a provision for this purpose.

The preceding train of observation will justify the position which has been elsewhere laid down, that “A CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of State authority to that of the Union.” Any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great INTERESTS of the Union to the POWER of the individual States. The convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities. There remain a few other lights, in which this important subject of taxation will claim a further consideration.

PUBLIUS.

The Same Subject Continued: Concerning the General Power of Taxation
For the Independent Journal.

Author: Alexander Hamilton

To the People of the State of New York:

BEFORE we proceed to examine any other objections to an indefinite power of taxation in the Union, I shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. Two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several States as among the citizens of the same State.

Suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess. There are persons who imagine that they can never be carried to too great a length; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote domestic manufactures. But all extremes are pernicious in various ways. Exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. When the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. I am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. It is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. The merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more expeditious sale.

The maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing States. But it is not so generally true as to render it equitable, that those duties should form the only national fund. When they are paid by the merchant they operate as an additional tax upon the importing State, whose citizens pay their proportion of them in the character of consumers. In this view they are productive of inequality among the States; which inequality would be increased with the increased extent of the duties. The confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufacturing States. The States which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those States which are not in the same favorable situation. They would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. To make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures. New York is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the Union to external taxation may be aware of. New York is an importing State, and is not likely speedily to be, to any great extent, a manufacturing State. She would, of course, suffer in a double light from restraining the jurisdiction of the Union to commercial imposts.

So far as these observations tend to inculcate a danger of the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in another part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme. I readily admit that this would be the case, as long as other resources were open; but if the avenues to them were closed, HOPE, stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional penalties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. The first success would be apt to inspire false opinions, which it might require a long course of subsequent experience to correct. Necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous. But even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. Let us now return to the examination of objections.

One which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the House of Representatives is not sufficiently numerous for the reception of all the different classes of citizens, in order to combine the interests and feelings of every part of the community, and to produce a due sympathy between the representative body and its constituents. This argument presents itself under a very specious and seducing form; and is well calculated to lay hold of the prejudices of those to whom it is addressed. But when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. The object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. I reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries.

The idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. Unless it were expressly provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice. Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. Those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. Many of them, indeed, are immediately connected with the operations of commerce. They know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. They are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. These considerations, and many others that might be mentioned prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the community.

With regard to the learned professions, little need be observed; they truly form no distinct interest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community.

Nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, I take to be perfectly united, from the wealthiest landlord down to the poorest tenant. No tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. Every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. But if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? If we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. Where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all.

It is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the people free. Where this is the case, the representative body, with too few exceptions to have any influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. But where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descriptions of men? Will not the landholder know and feel whatever will promote or insure the interest of landed property? And will he not, from his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied? Will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society?

If we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neighbors and acquaintances? Is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? This dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent.

There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found.

PUBLIUS.

The Same Subject Continued: Concerning the General Power of Taxation
From the New York Packet.
Tuesday, January 8, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

WE HAVE seen that the result of the observations, to which the foregoing number has been principally devoted, is, that from the natural operation of the different interests and views of the various classes of the community, whether the representation of the people be more or less numerous, it will consist almost entirely of proprietors of land, of merchants, and of members of the learned professions, who will truly represent all those different interests and views. If it should be objected that we have seen other descriptions of men in the local legislatures, I answer that it is admitted there are exceptions to the rule, but not in sufficient number to influence the general complexion or character of the government. There are strong minds in every walk of life that will rise superior to the disadvantages of situation, and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all; and I trust, for the credit of human nature, that we shall see examples of such vigorous plants flourishing in the soil of federal as well as of State legislation; but occasional instances of this sort will not render the reasoning founded upon the general course of things, less conclusive.

The subject might be placed in several other lights that would all lead to the same result; and in particular it might be asked, What greater affinity or relation of interest can be conceived between the carpenter and blacksmith, and the linen manufacturer or stocking weaver, than between the merchant and either of them? It is notorious that there are often as great rivalships between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry; so that, unless the representative body were to be far more numerous than would be consistent with any idea of regularity or wisdom in its deliberations, it is impossible that what seems to be the spirit of the objection we have been considering should ever be realized in practice. But I forbear to dwell any longer on a matter which has hitherto worn too loose a garb to admit even of an accurate inspection of its real shape or tendency.

There is another objection of a somewhat more precise nature that claims our attention. It has been asserted that a power of internal taxation in the national legislature could never be exercised with advantage, as well from the want of a sufficient knowledge of local circumstances, as from an interference between the revenue laws of the Union and of the particular States. The supposition of a want of proper knowledge seems to be entirely destitute of foundation. If any question is depending in a State legislature respecting one of the counties, which demands a knowledge of local details, how is it acquired? No doubt from the information of the members of the county. Cannot the like knowledge be obtained in the national legislature from the representatives of each State? And is it not to be presumed that the men who will generally be sent there will be possessed of the necessary degree of intelligence to be able to communicate that information? Is the knowledge of local circumstances, as applied to taxation, a minute topographical acquaintance with all the mountains, rivers, streams, highways, and bypaths in each State; or is it a general acquaintance with its situation and resources, with the state of its agriculture, commerce, manufactures, with the nature of its products and consumptions, with the different degrees and kinds of its wealth, property, and industry?

Nations in general, even under governments of the more popular kind, usually commit the administration of their finances to single men or to boards composed of a few individuals, who digest and prepare, in the first instance, the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature.

Inquisitive and enlightened statesmen are deemed everywhere best qualified to make a judicious selection of the objects proper for revenue; which is a clear indication, as far as the sense of mankind can have weight in the question, of the species of knowledge of local circumstances requisite to the purposes of taxation.

The taxes intended to be comprised under the general denomination of internal taxes may be subdivided into those of the DIRECT and those of the INDIRECT kind. Though the objection be made to both, yet the reasoning upon it seems to be confined to the former branch. And indeed, as to the latter, by which must be understood duties and excises on articles of consumption, one is at a loss to conceive what can be the nature of the difficulties apprehended. The knowledge relating to them must evidently be of a kind that will either be suggested by the nature of the article itself, or can easily be procured from any well-informed man, especially of the mercantile class. The circumstances that may distinguish its situation in one State from its situation in another must be few, simple, and easy to be comprehended. The principal thing to be attended to, would be to avoid those articles which had been previously appropriated to the use of a particular State; and there could be no difficulty in ascertaining the revenue system of each. This could always be known from the respective codes of laws, as well as from the information of the members from the several States.

The objection, when applied to real property or to houses and lands, appears to have, at first sight, more foundation, but even in this view it will not bear a close examination. Land taxes are co monly laid in one of two modes, either by ACTUAL valuations, permanent or periodical, or by OCCASIONAL assessments, at the discretion, or according to the best judgment, of certain officers whose duty it is to make them. In either case, the EXECUTION of the business, which alone requires the knowledge of local details, must be devolved upon discreet persons in the character of commissioners or assessors, elected by the people or appointed by the government for the purpose. All that the law can do must be to name the persons or to prescribe the manner of their election or appointment, to fix their numbers and qualifications and to draw the general outlines of their powers and duties. And what is there in all this that cannot as well be performed by the national legislature as by a State legislature? The attention of either can only reach to general principles; local details, as already observed, must be referred to those who are to execute the plan.

But there is a simple point of view in which this matter may be placed that must be altogether satisfactory. The national legislature can make use of the SYSTEM OF EACH STATE WITHIN THAT STATE. The method of laying and collecting this species of taxes in each State can, in all its parts, be adopted and employed by the federal government.

Let it be recollected that the proportion of these taxes is not to be left to the discretion of the national legislature, but is to be determined by the numbers of each State, as described in the second section of the first article. An actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression. The abuse of this power of taxation seems to have been provided against with guarded circumspection. In addition to the precaution just mentioned, there is a provision that “all duties, imposts, and excises shall be UNIFORM throughout the United States.”

It has been very properly observed by different speakers and writers on the side of the Constitution, that if the exercise of the power of internal taxation by the Union should be discovered on experiment to be really inconvenient, the federal government may then forbear the use of it, and have recourse to requisitions in its stead. By way of answer to this, it has been triumphantly asked, Why not in the first instance omit that ambiguous power, and rely upon the latter resource? Two solid answers may be given. The first is, that the exercise of that power, if convenient, will be preferable, because it will be more effectual; and it is impossible to prove in theory, or otherwise than by the experiment, that it cannot be advantageously exercised. The contrary, indeed, appears most probable. The second answer is, that the existence of such a power in the Constitution will have a strong influence in giving efficacy to requisitions. When the States know that the Union can apply itself without their agency, it will be a powerful motive for exertion on their part.

As to the interference of the revenue laws of the Union, and of its members, we have already seen that there can be no clashing or repugnancy of authority. The laws cannot, therefore, in a legal sense, interfere with each other; and it is far from impossible to avoid an interference even in the policy of their different systems. An effectual expedient for this purpose will be, mutually, to abstain from those objects which either side may have first had recourse to. As neither can CONTROL the other, each will have an obvious and sensible interest in this reciprocal forbearance. And where there is an IMMEDIATE common interest, we may safely count upon its operation. When the particular debts of the States are done away, and their expenses come to be limited within their natural compass, the possibility almost of interference will vanish. A small land tax will answer the purpose of the States, and will be their most simple and most fit resource.

Many spectres have been raised out of this power of internal taxation, to excite the apprehensions of the people: double sets of revenue officers, a duplication of their burdens by double taxations, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain.

As to the first point, there are two cases in which there can be no room for double sets of officers: one, where the right of imposing the tax is exclusively vested in the Union, which applies to the duties on imports; the other, where the object has not fallen under any State regulation or provision, which may be applicable to a variety of objects. In other cases, the probability is that the United States will either wholly abstain from the objects preoccupied for local purposes, or will make use of the State officers and State regulations for collecting the additional imposition. This will best answer the views of revenue, because it will save expense in the collection, and will best avoid any occasion of disgust to the State governments and to the people. At all events, here is a practicable expedient for avoiding such an inconvenience; and nothing more can be required than to show that evils predicted to not necessarily result from the plan.

As to any argument derived from a supposed system of influence, it is a sufficient answer to say that it ought not to be presumed; but the supposition is susceptible of a more precise answer. If such a spirit should infest the councils of the Union, the most certain road to the accomplishment of its aim would be to employ the State officers as much as possible, and to attach them to the Union by an accumulation of their emoluments. This would serve to turn the tide of State influence into the channels of the national government, instead of making federal influence flow in an opposite and adverse current. But all suppositions of this kind are invidious, and ought to be banished from the consideration of the great question before the people. They can answer no other end than to cast a mist over the truth.

As to the suggestion of double taxation, the answer is plain. The wants of the Union are to be supplied in one way or another; if to be done by the authority of the federal government, it will not be to be done by that of the State government. The quantity of taxes to be paid by the community must be the same in either case; with this advantage, if the provision is to be made by the Union that the capital resource of commercial imposts, which is the most convenient branch of revenue, can be prudently improved to a much greater extent under federal than under State regulation, and of course will render it less necessary to recur to more inconvenient methods; and with this further advantage, that as far as there may be any real difficulty in the exercise of the power of internal taxation, it will impose a disposition to greater care in the choice and arrangement of the means; and must naturally tend to make it a fixed point of policy in the national administration to go as far as may be practicable in making the luxury of the rich tributary to the public treasury, in order to diminish the necessity of those impositions which might create dissatisfaction in the poorer and most numerous classes of the society. Happy it is when the interest which the government has in the preservation of its own power, coincides with a proper distribution of the public burdens, and tends to guard the least wealthy part of the community from oppression!

As to poll taxes, I, without scruple, confess my disapprobation of them; and though they have prevailed from an early period in those States [1] which have uniformly been the most tenacious of their rights, I should lament to see them introduced into practice under the national government. But does it follow because there is a power to lay them that they will actually be laid? Every State in the Union has power to impose taxes of this kind; and yet in several of them they are unknown in practice. Are the State governments to be stigmatized as tyrannies, because they possess this power? If they are not, with what propriety can the like power justify such a charge against the national government, or even be urged as an obstacle to its adoption? As little friendly as I am to the species of imposition, I still feel a thorough conviction that the power of having recourse to it ought to exist in the federal government. There are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them. The real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect. There may exist certain critical and tempestuous conjunctures of the State, in which a poll tax may become an inestimable resource. And as I know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, I acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security.

I have now gone through the examination of such of the powers proposed to be vested in the United States, which may be considered as having an immediate relation to the energy of the government; and have endeavored to answer the principal objections which have been made to them. I have passed over in silence those minor authorities, which are either too inconsiderable to have been thought worthy of the hostilities of the opponents of the Constitution, or of too manifest propriety to admit of controversy. The mass of judiciary power, however, might have claimed an investigation under this head, had it not been for the consideration that its organization and its extent may be more advantageously considered in connection. This has determined me to refer it to the branch of our inquiries upon which we shall next enter.

PUBLIUS.

Concerning the Difficulties of the Convention in Devising a Proper Form of Government
From the Daily Advertiser.
Friday, January 11, 1788.

Author: James Madison

To the People of the State of New York:

IN REVIEWING the defects of the existing Confederation, and showing that they cannot be supplied by a government of less energy than that before the public, several of the most important principles of the latter fell of course under consideration. But as the ultimate object of these papers is to determine clearly and fully the merits of this Constitution, and the expediency of adopting it, our plan cannot be complete without taking a more critical and thorough survey of the work of the convention, without examining it on all its sides, comparing it in all its parts, and calculating its probable effects.

That this remaining task may be executed under impressions conducive to a just and fair result, some reflections must in this place be indulged, which candor previously suggests.

It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. To those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question. In placing, however, these different characters on a level, with respect to the weight of their opinions, I wish not to insinuate that there may not be a material difference in the purity of their intentions. It is but just to remark in favor of the latter description, that as our situation is universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief, the predetermined patron of what has been actually done may have taken his bias from the weight of these considerations, as well as from considerations of a sinister nature. The predetermined adversary, on the other hand, can have been governed by no venial motive whatever. The intentions of the first may be upright, as they may on the contrary be culpable. The views of the last cannot be upright, and must be culpable. But the truth is, that these papers are not addressed to persons falling under either of these characters. They solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it.

Persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected. Nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others.

With equal readiness will it be perceived, that besides these inducements to candor, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention.

The novelty of the undertaking immediately strikes us. It has been shown in the course of these papers, that the existing Confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it. It has been shown, that the other confederacies which could be consulted as precedents have been vitiated by the same erroneous principles, and can therefore furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued. The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them.

Among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form. Without substantially accomplishing this part of their undertaking, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public; yet that it could not be easily accomplished, will be denied by no one who is unwilling to betray his ignorance of the subject. Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government. Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. An irregular and mutable legislation is not more an evil in itself than it is odious to the people; and it may be pronounced with assurance that the people of this country, enlightened as they are with regard to the nature, and interested, as the great body of them are, in the effects of good government, will never be satisfied till some remedy be applied to the vicissitudes and uncertainties which characterize the State administrations. On comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them together in their due proportions. The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. Stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. A frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand.

How far the convention may have succeeded in this part of their work, will better appear on a more accurate view of it. From the cursory view here taken, it must clearly appear to have been an arduous part.

Not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the State governments. Every man will be sensible of this difficulty, in proportion as he has been accustomed to contemplate and discriminate objects extensive and complicated in their nature. The faculties of the mind itself have never yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. Sense, perception, judgment, desire, volition, memory, imagination, are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy. The boundaries between the great kingdom of nature, and, still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same important truth. The most sagacious and laborious naturalists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the ermination of the former and the commencement of the animal empire. A still greater obscurity lies in the distinctive characters by which the objects in each of these great departments of nature have been arranged and assorted.

When we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science.

The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.

Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and State jurisdictions, must have experienced the full effect of them all.

To the difficulties already mentioned may be added the interfering pretensions of the larger and smaller States. We cannot err in supposing that the former would contend for a participation in the government, fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious of the equality at present enjoyed by them. We may well suppose that neither side would entirely yield to the other, and consequently that the struggle could be terminated only by compromise. It is extremely probable, also, that after the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the greatest share of influence. There are features in the Constitution which warrant each of these suppositions; and as far as either of them is well founded, it shows that the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations.

Nor could it have been the large and small States only, which would marshal themselves in opposition to each other on various points. Other combinations, resulting from a difference of local position and policy, must have created additional difficulties. As every State may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the United States are distinguished from each other by a variety of circumstances, which produce a like effect on a larger scale. And although this variety of interests, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the government when formed, yet every one must be sensible of the contrary influence, which must have been experienced in the task of forming it.

Would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination? The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.

We had occasion, in a former paper, to take notice of the repeated trials which have been unsuccessfully made in the United Netherlands for reforming the baneful and notorious vices of their constitution. The history of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history of factions, contentions, and disappointments, and may be classed among the most dark and degraded pictures which display the infirmities and depravities of the human character. If, in a few scattered instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth; and by their lustre to darken the gloom of the adverse prospect to which they are contrasted. In revolving the causes from which these exceptions result, and applying them to the particular instances before us, we are necessarily led to two important conclusions. The first is, that the convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities the disease most incident to deliberative bodies, and most apt to contaminate their proceedings. The second conclusion is that all the deputations composing the convention were satisfactorily accommodated by the final act, or were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by delays or by new experiments.

PUBLIUS.

The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed
From the New York Packet.
Tuesday, January 15, 1788.

Author: James Madison

To the People of the State of New York:

IT IS not a little remarkable that in every case reported by ancient history, in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity.

Minos, we learn, was the primitive founder of the government of Crete, as Zaleucus was of that of the Locrians. Theseus first, and after him Draco and Solon, instituted the government of Athens. Lycurgus was the lawgiver of Sparta. The foundation of the original government of Rome was laid by Romulus, and the work completed by two of his elective successors, Numa and Tullius Hostilius. On the abolition of royalty the consular administration was substituted by Brutus, who stepped forward with a project for such a reform, which, he alleged, had been prepared by Tullius Hostilius, and to which his address obtained the assent and ratification of the senate and people. This remark is applicable to confederate governments also. Amphictyon, we are told, was the author of that which bore his name. The Achaean league received its first birth from Achaeus, and its second from Aratus.

What degree of agency these reputed lawgivers might have in their respective establishments, or how far they might be clothed with the legitimate authority of the people, cannot in every instance be ascertained. In some, however, the proceeding was strictly regular. Draco appears to have been intrusted by the people of Athens with indefinite powers to reform its government and laws. And Solon, according to Plutarch, was in a manner compelled, by the universal suffrage of his fellow-citizens, to take upon him the sole and absolute power of new-modeling the constitution. The proceedings under Lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens.

Whence could it have proceeded, that a people, jealous as the Greeks were of their liberty, should so far abandon the rules of caution as to place their destiny in the hands of a single citizen? Whence could it have proceeded, that the Athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a fellow-citizen, 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? These questions cannot be fully answered, without supposing that the fears of discord and disunion among a number of counsellors exceeded the apprehension of treachery or incapacity in a single individual. 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. Solon, who seems to have indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. And Lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition, and of securing his final success by a voluntary renunciation, first of his country, and then of his life. 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.

Is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be ascertained until an actual trial shall have pointed them out? This conjecture is rendered probable, not only by many considerations of a general nature, but by the particular case of the Articles of Confederation. It is observable that among the numerous objections and amendments suggested by the several States, when these articles were submitted for their ratification, not one is found which alludes to the great and radical error which on actual trial has discovered itself. And if we except the observations which New Jersey was led to make, rather by her local situation, than by her peculiar foresight, it may be questioned whether a single suggestion was of sufficient moment to justify a revision of the system. There is abundant reason, nevertheless, to suppose that immaterial as these objections were, they would have been adhered to with a very dangerous inflexibility, in some States, had not a zeal for their opinions and supposed interests been stifled by the more powerful sentiment of selfpreservation. One State, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. Nor was her pliancy in the end effected by a less motive, than the fear of being chargeable with protracting the public calamities, and endangering the event of the contest. Every candid reader will make the proper reflections on these important facts.

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. They are equally unanimous in prescribing the remedy, by which this happy effect is to be produced. The prescription is no sooner made known, however, than a number of persons interpose, and, without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him, under pain of certain death, to make use of it. Might not the patient reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree among themselves on some other remedy to be substituted? And if he found them differing as much from one another as from his first counsellors, would he not act prudently in trying the experiment unanimously recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one?

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. Are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? Let them speak for themselves. This one tells us that the proposed Constitution ought to be rejected, because it is not a confederation of the States, but a government over individuals. Another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. An objector in a large State exclaims loudly against the unreasonable equality of representation in the Senate. An objector in a small State is equally loud against the dangerous inequality in the House of Representatives. From this quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. From another quarter, and sometimes from the same quarter, on another occasion, the cry is that the Congress will be but a shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. A patriot in a State that does not import or export, discerns insuperable objections against the power of direct taxation. The patriotic adversary in a State of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption. This politician discovers in the Constitution a direct and irresistible tendency to monarchy; that is equally sure it will end in aristocracy. Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them; whilst a fourth is not wanting, who with no less confidence affirms that the Constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. With another class of adversaries to the Constitution the language is that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty. Whilst this objection circulates in vague and general expressions, there are but a few who lend their sanction to it. Let each one come forward with his particular explanation, and scarce any two are exactly agreed upon the subject. In the eyes of one the junction of the Senate with the President in the responsible function of appointing to offices, instead of vesting this executive power in the Executive alone, is the vicious part of the organization. To another, the exclusion of the House of Representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. With another, the admission of the President into any share of a power which ever must be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. No part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the Senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. “We concur fully,” reply others, “in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. Our principal dislike to the organization arises from the extensive powers already lodged in that department.” Even among the zealous patrons of a council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. The demand of one gentleman is, that the council should consist of a small number to be appointed by the most numerous branch of the legislature. Another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the President himself.

As it can give no umbrage to the writers against the plan of the federal Constitution, let us suppose, that as they are the most zealous, so they are also the most sagacious, of those who think the late convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. Let us further suppose that their country should concur, both in this favorable opinion of their merits, and in their unfavorable opinion of the convention; and should accordingly proceed to form them into a second convention, with full powers, and for the express purpose of revising and remoulding the work of the first. Were the experiment to be seriously made, though it required some effort to view it seriously even in fiction, I leave it to be decided by the sample of opinions just exhibited, whether, with all their enmity to their predecessors, they would, in any one point, depart so widely from their example, as in the discord and ferment that would mark their own deliberations; and whether the Constitution, now before the public, would not stand as fair a chance for immortality, as Lycurgus gave to that of Sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers.

It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation? Is an indefinite power to raise money dangerous in the hands of the federal government? The present Congress can make requisitions to any amount they please, and the States are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both abroad and at home, as long as a shilling will be lent. Is an indefinite power to raise troops dangerous? The Confederation gives to Congress that power also; and they have already begun to make use of it. Is it improper and unsafe to intermix the different powers of government in the same body of men? Congress, a single body of men, are the sole depositary of all the federal powers. Is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? The Confederation places them both in the hands of Congress. Is a bill of rights essential to liberty? The Confederation has no bill of rights. Is it an objection against the new Constitution, that it empowers the Senate, with the concurrence of the Executive, to make treaties which are to be the laws of the land? The existing Congress, without any such control, can make treaties which they themselves have declared, and most of the States have recognized, to be the supreme law of the land. Is the importation of slaves permitted by the new Constitution for twenty years? By the old it is permitted forever.

I shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of Congress on the State for the means of carrying them into practice; that however large the mass of powers may be, it is in fact a lifeless mass. Then, say I, in the first place, that the Confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that if the Union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing Congress; in either of which events, the contrast just stated will hold good. But this is not all. Out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the Union. It is now no longer a point of speculation and hope, that the Western territory is a mine of vast wealth to the United States; and although it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expenses, yet must it hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to the federal treasury. A very large proportion of this fund has been already surrendered by individual States; and it may with reason be expected that the remaining States will not persist in withholding similar proofs of their equity and generosity. We may calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the United States, will soon become a national stock. Congress have assumed the administration of this stock. They have begun to render it productive. Congress have undertaken to do more: they have proceeded to form new States, to erect temporary governments, to appoint officers for them, and to prescribe the conditions on which such States shall be admitted into the Confederacy. All this has been done; and done without the least color of constitutional authority. Yet no blame has been whispered; no alarm has been sounded. A GREAT and INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY of men, who can RAISE TROOPS to an INDEFINITE NUMBER, and appropriate money to their support for an INDEFINITE PERIOD OF TIME. And yet there are men, who have not only been silent spectators of this prospect, but who are advocates for the system which exhibits it; and, at the same time, urge against the new system the objections which we have heard. Would they not act with more consistency, in urging the establishment of the latter, as no less necessary to guard the Union against the future powers and resources of a body constructed like the existing Congress, than to save it from the dangers threatened by the present impotency of that Assembly?

I mean not, by any thing here said, to throw censure on the measures which have been pursued by Congress. I am sensible they could not have done otherwise. The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. But is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? A dissolution or usurpation is the dreadful dilemma to which it is continually exposed.

PUBLIUS.

The Conformity of the Plan to Republican Principles
For the Independent Journal.

Author: James Madison

To the People of the State of New York:

THE last paper having concluded the observations which were meant to introduce a candid survey of the plan of government reported by the convention, we now proceed to the execution of that part of our undertaking.

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, in which no particle of the supreme authority is derived from the people, 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. Poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. The government of England, which has one republican branch only, combined with an hereditary aristocracy and monarchy, has, with equal impropriety, been frequently placed on the list of republics. 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. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. According to the constitution of every State in the Union, some or other of the officers of government are appointed indirectly only by the people. According to most of them, the chief magistrate himself is so appointed. And according to one, this mode of appointment is extended to one of the co-ordinate branches of the legislature. According to all the constitutions, also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. According to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior.

On comparing the Constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. The House of Representatives, like that of one branch at least of all the State legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people. The President is indirectly derived from the choice of the people, according to the example in most of the States. Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves, the duration of the appointments is equally conformable to the republican standard, and to the model of State constitutions The House of Representatives is periodically elective, as in all the States; and for the period of two years, as in the State of South Carolina. The Senate is elective, for the period of six years; which is but one year more than the period of the Senate of Maryland, and but two more than that of the Senates of New York and Virginia. The President is to continue in office for the period of four years; as in New York and Delaware, the chief magistrate is elected for three years, and in South Carolina for two years. In the other States the election is annual. In several of the States, however, no constitutional provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the State constitutions.

Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the State governments; and in its express guaranty of the republican form to each of the latter.

“But it was not sufficient,” say the adversaries of the proposed Constitution, “for the convention to adhere to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States.” And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision.

Without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first, to ascertain the real character of the government in question; secondly, to inquire how far the convention were authorized to propose such a government; and thirdly, how far the duty they owed to their country could supply any defect of regular authority.

First. In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.

On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act.

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution.

The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features.

The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL, not the FEDERAL character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a NATIONAL government.

But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme and ultimate authority would reside in the MAJORITY of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and principles. In requiring more than a majority, and particularly in computing the proportion by STATES, not by CITIZENS, it departs from the NATIONAL and advances towards the FEDERAL character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the FEDERAL and partakes of the NATIONAL character.

The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

PUBLIUS.

The Powers of the Convention to Form a Mixed Government Examined and Sustained
From the New York Packet.
Friday, January 18, 1788.

Author: James Madison

To the People of the State of New York:

THE SECOND point to be examined is, whether the convention were authorized to frame and propose this mixed Constitution. The powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents. As all of these, however, had reference, either to the recommendation from the meeting at Annapolis, in September, 1786, or to that from Congress, in February, 1787, it will be sufficient to recur to these particular acts. The act from Annapolis recommends the “appointment of commissioners to take into consideration the situation of the United States; to devise SUCH FURTHER PROVISIONS as shall appear to them necessary to render the Constitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE UNION; and to report such an act for that purpose, to the United States in Congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every State, will effectually provide for the same. “The recommendatory act of Congress is in the words following:”WHEREAS, There is provision in the articles of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced, that there are defects in the present Confederation; as a mean to remedy which, several of the States, and PARTICULARLY THE STATE OF NEW YORK, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these States A FIRM NATIONAL GOVERNMENT:”Resolved, That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and reporting to Congress and the several legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION. “From these two acts, it appears, 1st, that the object of the convention was to establish, in these States, A FIRM NATIONAL GOVERNMENT; 2d, that this government was to be such as would be ADEQUATE TO THE EXIGENCIES OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes were to be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF CONFEDERATION, as it is expressed in the act of Congress, or by SUCH FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the recommendatory act from Annapolis; 4th, that the alterations and provisions were to be reported to Congress, and to the States, in order to be agreed to by the former and confirmed by the latter. From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. They were to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles of Confederation into such form as to accomplish these purposes.

There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means. Suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance with each other; that a NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment of the convention, be affected by ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part of the definition ought to have been embraced, and which rejected? Which was the more important, which the less important part? Which the end; which the means? Let the most scrupulous expositors of delegated powers; let the most inveterate objectors against those exercised by the convention, answer these questions. Let them declare, whether it was of most importance to the happiness of the people of America, that the articles of Confederation should be disregarded, and an adequate government be provided, and the Union preserved; or that an adequate government should be omitted, and the articles of Confederation preserved. Let them declare, whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed. But is it necessary to suppose that these expressions are absolutely irreconcilable to each other; that no ALTERATIONS or PROVISIONS in THE ARTICLES OF THE CONFEDERATION could possibly mould them into a national and adequate government; into such a government as has been proposed by the convention? No stress, it is presumed, will, in this case, be laid on the TITLE; a change of that could never be deemed an exercise of ungranted power. ALTERATIONS in the body of the instrument are expressly authorized. NEW PROVISIONS therein are also expressly authorized. Here then is a power to change the title; to insert new articles; to alter old ones. Must it of necessity be admitted that this power is infringed, so long as a part of the old articles remain? Those who maintain the affirmative ought at least to mark the boundary between authorized and usurped innovations; between that degree of change which lies within the compass of ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a TRANSMUTATION of the government. Will it be said that the alterations ought not to have touched the substance of the Confederation? The States would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some SUBSTANTIAL reform had not been in contemplation. Will it be said that the FUNDAMENTAL PRINCIPLES of the Confederation were not within the purview of the convention, and ought not to have been varied? I ask, What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed. Do they require that the members of the government should derive their appointment from the legislatures, not from the people of the States? One branch of the new government is to be appointed by these legislatures; and under the Confederation, the delegates to Congress MAY ALL be appointed immediately by the people, and in two States [1] are actually so appointed. Do they require that the powers of the government should act on the States, and not immediately on individuals? In some instances, as has been shown, the powers of the new government will act on the States in their collective characters. In some instances, also, those of the existing government act immediately on individuals. In cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the Indians; of claims under grants of land by different States; and, above all, in the case of trials by courts-marshal in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the Confederation operate immediately on the persons and interests of individual citizens. Do these fundamental principles require, particularly, that no tax should be levied without the intermediate agency of the States? The Confederation itself authorizes a direct tax, to a certain extent, on the post office. The power of coinage has been so construed by Congress as to levy a tribute immediately from that source also. But pretermitting these instances, was it not an acknowledged object of the convention and the universal expectation of the people, that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue? Had not Congress repeatedly recommended this measure as not inconsistent with the fundamental principles of the Confederation? Had not every State but one; had not New York herself, so far complied with the plan of Congress as to recognize the PRINCIPLE of the innovation? Do these principles, in fine, require that the powers of the general government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction. The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation. The misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old. In one particular it is admitted that the convention have departed from the tenor of their commission. Instead of reporting a plan requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is to be confirmed by the PEOPLE, and may be carried into effect by NINE STATES ONLY. It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a MAJORITY of one sixtieth of the people of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the people an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. As this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, I dismiss it without further observation. The THIRD point to be inquired into is, how far considerations of duty arising out of the case itself could have supplied any defect of regular authority. In the preceding inquiries the powers of the convention have been analyzed and tried with the same rigor, and by the same rules, as if they had been real and final powers for the establishment of a Constitution for the United States. We have seen in what manner they have borne the trial even on that supposition. It is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the States, and so understood by the convention; and that the latter have accordingly planned and proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. This reflection places the subject in a point of view altogether different, and will enable us to judge with propriety of the course taken by the convention. Let us view the ground on which the convention stood. It may be collected from their proceedings, that they were deeply and unanimously impressed with the crisis, which had led their country almost with one voice to make so singular and solemn an experiment for correcting the errors of a system by which this crisis had been produced; that they were no less deeply and unanimously convinced that such a reform as they have proposed was absolutely necessary to effect the purposes of their appointment. It could not be unknown to them that the hopes and expectations of the great body of citizens, throughout this great empire, were turned with the keenest anxiety to the event of their deliberations. They had every reason to believe that the contrary sentiments agitated the minds and bosoms of every external and internal foe to the liberty and prosperity of the United States. They had seen in the origin and progress of the experiment, the alacrity with which the PROPOSITION, made by a single State (Virginia), towards a partial amendment of the Confederation, had been attended to and promoted. They had seen the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW States, convened at Annapolis, of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen States. They had seen, in a variety of instances, assumptions by Congress, not only of recommendatory, but of operative, powers, warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,” [2] since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and respectable citizen or number of citizens. They must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the States were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and that CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were anywhere seen, except in those who wished to indulge, under these masks, their secret enmity to the substance contended for. They must have borne in mind, that as the plan to be framed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities. It might even have occurred to them, that where a disposition to cavil prevailed, their neglect to execute the degree of power vested in them, and still more their recommendation of any measure whatever, not warranted by their commission, would not less excite animadversion, than a recommendation at once of a measure fully commensurate to the national exigencies. Had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly? Or if there be a man whose propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the twelve States who USURPED THE POWER of sending deputies to the convention, a body utterly unknown to their constitutions; for Congress, who recommended the appointment of this body, equally unknown to the Confederation; and for the State of New York, in particular, which first urged and then complied with this unauthorized interposition? But that the objectors may be disarmed of every pretext, it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by circumstances in proposing a Constitution for their country: does it follow that the Constitution ought, for that reason alone, to be rejected? If, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? The prudent inquiry, in all cases, ought surely to be, not so much FROM WHOM the advice comes, as whether the advice be GOOD. The sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America. How far this character is due to the Constitution, is the subject under investigation.

PUBLIUS.

General View of the Powers Conferred by the Constitution
For the Independent Journal.

Author: James Madison

To the People of the State of New York:

THE Constitution proposed by the convention may be considered under two general points of view. The FIRST relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the States. The SECOND, to the particular structure of the government, and the distribution of this power among its several branches. Under the FIRST view of the subject, two important questions arise: 1. Whether any part of the powers transferred to the general government be unnecessary or improper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States? Is the aggregate power of the general government greater than ought to have been vested in it? This is the FIRST question. It cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. They have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made. This method of handling the subject cannot impose on the good sense of the people of America. It may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment. That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: 1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers. The powers falling within the FIRST class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money. Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils. Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous, therefore, to enter into a proof of the affirmative. The existing Confederation establishes this power in the most ample form. Is the power of raising armies and equipping fleets necessary? This is involved in the foregoing power. It is involved in the power of self-defense. But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of maintaining both in PEACE, as well as in war? The answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place. The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense? If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety.

How could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation? The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions. If one nation maintains constantly a disciplined army, ready for the service of ambition or revenge, it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions.

The fifteenth century was the unhappy epoch of military establishments in the time of peace. They were introduced by Charles VII. of France. All Europe has followed, or been forced into, the example. Had the example not been followed by other nations, all Europe must long ago have worn the chains of a universal monarch. Were every nation except France now to disband its peace establishments, the same event might follow. The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations and rendered her the mistress of the world. Not the less true is it, that the liberties of Rome proved the final victim to her military triumphs; and that the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution. A wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties. The clearest marks of this prudence are stamped on the proposed Constitution. The Union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous. America united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than America disunited, with a hundred thousand veterans ready for combat. It was remarked, on a former occasion, that the want of this pretext had saved the liberties of one nation in Europe. Being rendered by her insular situation and her maritime resources impregnable to the armies of her neighbors, the rulers of Great Britain have never been able, by real or artificial dangers, to cheat the public into an extensive peace establishment. The distance of the United States from the powerful nations of the world gives them the same happy security. A dangerous establishment can never be necessary or plausible, so long as they continue a united people. But let it never, for a moment, be forgotten that they are indebted for this advantage to the Union alone. The moment of its dissolution will be the date of a new order of things. The fears of the weaker, or the ambition of the stronger States, or Confederacies, will set the same example in the New, as Charles VII. did in the Old World. The example will be followed here from the same motives which produced universal imitation there. Instead of deriving from our situation the precious advantage which Great Britain has derived from hers, the face of America will be but a copy of that of the continent of Europe. It will present liberty everywhere crushed between standing armies and perpetual taxes. The fortunes of disunited America will be even more disastrous than those of Europe. The sources of evil in the latter are confined to her own limits. No superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge. In America the miseries springing from her internal jealousies, contentions, and wars, would form a part only of her lot. A plentiful addition of evils would have their source in that relation in which Europe stands to this quarter of the earth, and which no other quarter of the earth bears to Europe. This picture of the consequences of disunion cannot be too highly colored, or too often exhibited. Every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the Union of America, and be able to set a due value on the means of preserving it.

Next to the effectual establishment of the Union, the best possible precaution against danger from standing armies is a limitation of the term for which revenue may be appropriated to their support. This precaution the Constitution has prudently added. I will not repeat here the observations which I flatter myself have placed this subject in a just and satisfactory light. But it may not be improper to take notice of an argument against this part of the Constitution, which has been drawn from the policy and practice of Great Britain. It is said that the continuance of an army in that kingdom requires an annual vote of the legislature; whereas the American Constitution has lengthened this critical period to two years. This is the form in which the comparison is usually stated to the public: but is it a just form? Is it a fair comparison? Does the British Constitution restrain the parliamentary discretion to one year? Does the American impose on the Congress appropriations for two years? On the contrary, it cannot be unknown to the authors of the fallacy themselves, that the British Constitution fixes no limit whatever to the discretion of the legislature, and that the American ties down the legislature to two years, as the longest admissible term. Had the argument from the British example been truly stated, it would have stood thus: The term for which supplies may be appropriated to the army establishment, though unlimited by the British Constitution, has nevertheless, in practice, been limited by parliamentary discretion to a single year. Now, if in Great Britain, where the House of Commons is elected for seven years; where so great a proportion of the members are elected by so small a proportion of the people; where the electors are so corrupted by the representatives, and the representatives so corrupted by the Crown, the representative body can possess a power to make appropriations to the army for an indefinite term, without desiring, or without daring, to extend the term beyond a single year, ought not suspicion herself to blush, in pretending that the representatives of the United States, elected FREELY by the WHOLE BODY of the people, every SECOND YEAR, cannot be safely intrusted with the discretion over such appropriations, expressly limited to the short period of TWO YEARS? A bad cause seldom fails to betray itself. Of this truth, the management of the opposition to the federal government is an unvaried exemplification. But among all the blunders which have been committed, none is more striking than the attempt to enlist on that side the prudent jealousy entertained by the people, of standing armies. The attempt has awakened fully the public attention to that important subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against danger from that quarter, but that nothing short of a Constitution fully adequate to the national defense and the preservation of the Union, can save America from as many standing armies as it may be split into States or Confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter. The palpable necessity of the power to provide and maintain a navy has protected that part of the Constitution against a spirit of censure, which has spared few other parts. It must, indeed, be numbered among the greatest blessings of America, that as her Union will be the only source of her maritime strength, so this will be a principal source of her security against danger from abroad. In this respect our situation bears another likeness to the insular advantage of Great Britain. The batteries most capable of repelling foreign enterprises on our safety, are happily such as can never be turned by a perfidious government against our liberties. The inhabitants of the Atlantic frontier are all of them deeply interested in this provision for naval protection, and if they have hitherto been suffered to sleep quietly in their beds; if their property has remained safe against the predatory spirit of licentious adventurers; if their maritime towns have not yet been compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions of daring and sudden invaders, these instances of good fortune are not to be ascribed to the capacity of the existing government for the protection of those from whom it claims allegiance, but to causes that are fugitive and fallacious. If we except perhaps Virginia and Maryland, which are peculiarly vulnerable on their eastern frontiers, no part of the Union ought to feel more anxiety on this subject than New York. Her seacoast is extensive. A very important district of the State is an island. The State itself is penetrated by a large navigable river for more than fifty leagues. The great emporium of its commerce, the great reservoir of its wealth, lies every moment at the mercy of events, and may almost be regarded as a hostage for ignominious compliances with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians. Should a war be the result of the precarious situation of European affairs, and all the unruly passions attending it be let loose on the ocean, our escape from insults and depredations, not only on that element, but every part of the other bordering on it, will be truly miraculous. In the present condition of America, the States more immediately exposed to these calamities have nothing to hope from the phantom of a general government which now exists; and if their single resources were equal to the task of fortifying themselves against the danger, the object to be protected would be almost consumed by the means of protecting them. The power of regulating and calling forth the militia has been already sufficiently vindicated and explained. The power of levying and borrowing money, being the sinew of that which is to be exerted in the national defense, is properly thrown into the same class with it. This power, also, has been examined already with much attention, and has, I trust, been clearly shown to be necessary, both in the extent and form given to it by the Constitution. I will address one additional reflection only to those who contend that the power ought to have been restrained to external taxation by which they mean, taxes on articles imported from other countries. It cannot be doubted that this will always be a valuable source of revenue; that for a considerable time it must be a principal source; that at this moment it is an essential one. But we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce must vary with the variations, both in the extent and the kind of imports; and that these variations do not correspond with the progress of population, which must be the general measure of the public wants. As long as agriculture continues the sole field of labor, the importation of manufactures must increase as the consumers multiply. As soon as domestic manufactures are begun by the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people increase. In a more remote stage, the imports may consist in a considerable part of raw materials, which will be wrought into articles for exportation, and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging duties. A system of government, meant for duration, ought to contemplate these revolutions, and be able to accommodate itself to them. Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare. “But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are “their common defense, security of their liberties, and mutual and general welfare. ” The terms of article eighth are still more identical: “All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,” etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever.

But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!

PUBLIUS.

The Powers Conferred by the Constitution Further Considered
From the New York Packet.
Tuesday, January 22, 1788.

Author: James Madison

To the People of the State of New York:

THE SECOND class of powers, lodged in the general government, consists of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce, including a power to prohibit, after the year 1808, the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations. This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations. The powers to make treaties and to send and receive ambassadors, speak their own propriety. Both of them are comprised in the articles of Confederation, with this difference only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially frustrated by regulations of the States; and that a power of appointing and receiving “other public ministers and consuls,” is expressly and very properly added to the former provision concerning ambassadors. The term ambassador, if taken strictly, as seems to be required by the second of the articles of Confederation, comprehends the highest grade only of public ministers, and excludes the grades which the United States will be most likely to prefer, where foreign embassies may be necessary. And under no latitude of construction will the term comprehend consuls. Yet it has been found expedient, and has been the practice of Congress, to employ the inferior grades of public ministers, and to send and receive consuls. It is true, that where treaties of commerce stipulate for the mutual appointment of consuls, whose functions are connected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties; and that where no such treaties exist, the mission of American consuls into foreign countries may PERHAPS be covered under the authority, given by the ninth article of the Confederation, to appoint all such civil officers as may be necessary for managing the general affairs of the United States. But the admission of consuls into the United States, where no previous treaty has stipulated it, seems to have been nowhere provided for. A supply of the omission is one of the lesser instances in which the convention have improved on the model before them. But the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. A list of the cases in which Congress have been betrayed, or forced by the defects of the Confederation, into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new Constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old. The power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, belongs with equal propriety to the general government, and is a still greater improvement on the articles of Confederation. These articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. The definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes.

A definition of felonies on the high seas is evidently requisite. Felony is a term of loose signification, even in the common law of England; and of various import in the statute law of that kingdom. But neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. The meaning of the term, as defined in the codes of the several States, would be as impracticable as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the States; and varies in each with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper.

The regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration. It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren!

Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government. The powers included in the THIRD class are those which provide for the harmony and proper intercourse among the States. Under this head might be included the particular restraints imposed on the authority of the States, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and secureties of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to establish post offices and post roads. The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. 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 the diet; 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. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission. The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of Confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of Confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. All that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is, that by providing for this last case, the Constitution has supplied a material omission in the articles of Confederation. The authority of the existing Congress is restrained to the regulation of coin STRUCK by their own authority, or that of the respective States. It must be seen at once that the proposed uniformity in the VALUE of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different States. The punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both. The regulation of weights and measures is transferred from the articles of Confederation, and is founded on like considerations with the preceding power of regulating coin.

The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of the Confederation, it is declared “that the FREE INHABITANTS of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of FREE CITIZENS in the several States; and THE PEOPLE of each State shall, in every other, enjoy all the privileges of trade and commerce,” etc. There is a confusion of language here, which is remarkable. Why the terms FREE INHABITANTS are used in one part of the article, FREE CITIZENS in another, and PEOPLE in another; or what was meant by superadding to “all privileges and immunities of free citizens,” “all the privileges of trade and commerce,” cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of FREE INHABITANTS of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of FREE CITIZENS of the latter; that is, to greater privileges than they may be entitled to in their own State: so that it may be in the power of a particular State, or rather every State is laid under a necessity, not only to confer the rights of citizenship in other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term “inhabitants” to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each State, of naturalizing aliens in every other State. In one State, residence for a short term confirms all the rights of citizenship: in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one State be preposterously rendered paramount to the law of another, within the jurisdiction of the other. We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. What would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States. The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question. The power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on the clause relating to this subject in the articles of Confederation. The meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction. The power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency.

Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.

PUBLIUS.

The Same Subject Continued: The Powers Conferred by the Constitution Further Considered
For the Independent Journal.

Author: James Madison

To the People of the State of New York:

THE FOURTH class comprises the following miscellaneous powers:1. A power “to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries. “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.

The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress. 2. “To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all places purchased by the consent of the legislatures of the States in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings. “The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy. This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated. The necessity of a like authority over forts, magazines, etc. , established by the general government, is not less evident. The public money expended on such places, and the public property deposited in them, requires that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend, to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated, by requiring the concurrence of the States concerned, in every such establishment. 3. “To declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained. “As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author. 4. “To admit new States into the Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress. “In the articles of Confederation, no provision is found on this important subject. Canada was to be admitted of right, on her joining in the measures of the United States; and the other COLONIES, by which were evidently meant the other British colonies, at the discretion of nine States. The eventual establishment of NEW STATES seems to have been overlooked by the compilers of that instrument. We have seen the inconvenience of this omission, and the assumption of power into which Congress have been led by it. With great propriety, therefore, has the new system supplied the defect. The general precaution, that no new States shall be formed, without the concurrence of the federal authority, and that of the States concerned, is consonant to the principles which ought to govern such transactions. The particular precaution against the erection of new States, by the partition of a State without its consent, quiets the jealousy of the larger States; as that of the smaller is quieted by a like precaution, against a junction of States without their consent. 5. “To dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with a proviso, that nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. “This is a power of very great importance, and required by considerations similar to those which show the propriety of the former. The proviso annexed is proper in itself, and was probably rendered absolutely necessary by jealousies and questions concerning the Western territory sufficiently known to the public. 6. “To guarantee to every State in the Union a republican form of government; to 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. “In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be SUBSTANTIALLY maintained. But a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the Constitution? Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature. “As the confederate republic of Germany,” says Montesquieu, “consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland. ” “Greece was undone,” he adds, “as soon as the king of Macedon obtained a seat among the Amphictyons. ” In the latter case, no doubt, the disproportionate force, as well as the monarchical form, of the new confederate, had its share of influence on the events. It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves. These questions admit of ready answers. If the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be, of course, bound to pursue the authority. But the authority extends no further than to a GUARANTY of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for antirepublican Constitutions; a restriction which, it is presumed, will hardly be considered as a grievance.

A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. The history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article. Protection against domestic violence is added with equal propriety. It has been remarked, that even among the Swiss cantons, which, properly speaking, are not under one government, provision is made for this object; and the history of that league informs us that mutual aid is frequently claimed and afforded; and as well by the most democratic, as the other cantons. A recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature. At first view, it might seem not to square with the republican theory, to suppose, either that a majority have not the right, or that a minority will have the force, to subvert a government; and consequently, that the federal interposition can never be required, but when it would be improper. But theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State; and if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the State authority? Besides, there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other.

Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it. Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword? May not a more compact and advantageous position turn the scale on the same side, against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election!

May it not happen, in fine, that the minority of CITIZENS may become a majority of PERSONS, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the State has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government, are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves. In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends. Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind! Should it be asked, what is to be the redress for an insurrection pervading all the States, and comprising a superiority of the entire force, though not a constitutional right? the answer must be, that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability; and that it is a sufficient recommendation of the federal Constitution, that it diminishes the risk of a calamity for which no possible constitution can provide a cure. Among the advantages of a confederate republic enumerated by Montesquieu, an important one is, “that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. “7. “To consider all debts contracted, and engagements entered into, before the adoption of this Constitution, as being no less valid against the United States, under this Constitution, than under the Confederation. “This can only be considered as a declaratory proposition; and may have been inserted, among other reasons, for the satisfaction of the foreign creditors of the United States, who cannot be strangers to the pretended doctrine, that a change in the political form of civil society has the magical effect of dissolving its moral obligations. Among the lesser criticisms which have been exercised on the Constitution, it has been remarked that the validity of engagements ought to have been asserted in favor of the United States, as well as against them; and in the spirit which usually characterizes little critics, the omission has been transformed and magnified into a plot against the national rights. The authors of this discovery may be told, what few others need to be informed of, that as engagements are in their nature reciprocal, an assertion of their validity on one side, necessarily involves a validity on the other side; and that as the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. They may be further told, that every constitution must limit its precautions to dangers that are not altogether imaginary; and that no real danger can exist that the government would DARE, with, or even without, this constitutional declaration before it, to remit the debts justly due to the public, on the pretext here condemned. 8. “To provide for amendments to be ratified by three fourths of the States under two exceptions only. “That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other. The exception in favor of the equality of suffrage in the Senate, was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on by the States particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it. 9. “The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same. “This article speaks for itself.

The express authority of the people alone could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable. Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it? The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. PERHAPS, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate. The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain MODERATION on one side, and PRUDENCE on the other.

PUBLIUS.

Restrictions on the Authority of the Several States
From the New York Packet.
Friday, January 25, 1788.

Author: James Madison

To the People of the State of New York:

A FIFTH class of provisions in favor of the federal authority consists of the following restrictions on the authority of the several States:1. “No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver a legal tender in payment of debts; pass any bill of attainder, ex-post-facto law, or law impairing the obligation of contracts; or grant any title of nobility. “The prohibition against treaties, alliances, and confederations makes a part of the existing articles of Union; and for reasons which need no explanation, is copied into the new Constitution. The prohibition of letters of marque is another part of the old system, but is somewhat extended in the new. According to the former, letters of marque could be granted by the States after a declaration of war; according to the latter, these licenses must be obtained, as well during war as previous to its declaration, from the government of the United States. This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those for whose conduct the nation itself is to be responsible.

The right of coining money, which is here taken from the States, was left in their hands by the Confederation, as a concurrent right with that of Congress, under an exception in favor of the exclusive right of Congress to regulate the alloy and value. In this instance, also, the new provision is an improvement on the old. Whilst the alloy and value depended on the general authority, a right of coinage in the particular States could have no other effect than to multiply expensive mints and diversify the forms and weights of the circulating pieces. The latter inconveniency defeats one purpose for which the power was originally submitted to the federal head; and as far as the former might prevent an inconvenient remittance of gold and silver to the central mint for recoinage, the end can be as well attained by local mints established under the general authority.

The extension of the prohibition to bills of credit must give pleasure to every citizen, in proportion to his love of justice and his knowledge of the true springs of public prosperity. The loss which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man, on the necessary confidence in the public councils, on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the States chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice, of the power which has been the instrument of it. In addition to these persuasive considerations, it may be observed, that the same reasons which show the necessity of denying to the States the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in the place of coin. Had every State a right to regulate the value of its coin, there might be as many different currencies as States, and thus the intercourse among them would be impeded; retrospective alterations in its value might be made, and thus the citizens of other States be injured, and animosities be kindled among the States themselves. The subjects of foreign powers might suffer from the same cause, and hence the Union be discredited and embroiled by the indiscretion of a single member. No one of these mischiefs is less incident to a power in the States to emit paper money, than to coin gold or silver. The power to make any thing but gold and silver a tender in payment of debts, is withdrawn from the States, on the same principle with that of issuing a paper currency. Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and lessinformed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. The prohibition with respect to titles of nobility is copied from the articles of Confederation and needs no comment. 2. “No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay. “The restraint on the power of the States over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. It is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified seems well calculated at once to secure to the States a reasonable discretion in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion.

The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark. The SIXTH and last class consists of the several powers and provisions by which efficacy is given to all the rest. 1. Of these the first is, the “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. “Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the SUBSTANCE of this power, the whole Constitution would be a dead letter. Those who object to the article, therefore, as a part of the Constitution, can only mean that the FORM of the provision is improper. But have they considered whether a better form could have been substituted? There are four other possible methods which the Constitution might have taken on this subject. They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not EXPRESSLY delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms “necessary and proper”; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference. Had the convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term “EXPRESSLY” with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction.

It would be easy to show, if it were necessary, that no important power, delegated by the articles of Confederation, has been or can be executed by Congress, without recurring more or less to the doctrine of CONSTRUCTION or IMPLICATION. As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not EXPRESSLY granted. Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the PARTICULAR POWERS, which are the means of attaining the OBJECT of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same.

Had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, NOT NECESSARY OR PROPER, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made. Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. Had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the Union. If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people interested in watching the conduct of the former, violations of the State constitutions are more likely to remain unnoticed and unredressed. 2. “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. “The indiscreet zeal of the adversaries to the Constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. To be fully sensible of this, we need only suppose for a moment that the supremacy of the State constitutions had been left complete by a saving clause in their favor. In the first place, as these constitutions invest the State legislatures with absolute sovereignty, in all cases not excepted by the existing articles of Confederation, all the authorities contained in the proposed Constitution, so far as they exceed those enumerated in the Confederation, would have been annulled, and the new Congress would have been reduced to the same impotent condition with their predecessors. In the next place, as the constitutions of some of the States do not even expressly and fully recognize the existing powers of the Confederacy, an express saving of the supremacy of the former would, in such States, have brought into question every power contained in the proposed Constitution. In the third place, as the constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere with some and not with other constitutions, and would consequently be valid in some of the States, at the same time that it would have no effect in others. In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members. 3. “The Senators and Representatives, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and the several States, shall be bound by oath or affirmation to support this Constitution. “It has been asked why it was thought necessary, that the State magistracy should be bound to support the federal Constitution, and unnecessary that a like oath should be imposed on the officers of the United States, in favor of the State constitutions. Several reasons might be assigned for the distinction. I content myself with one, which is obvious and conclusive. The members of the federal government will have no agency in carrying the State constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the federal Constitution. The election of the President and Senate will depend, in all cases, on the legislatures of the several States. And the election of the House of Representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the States. 4. Among the provisions for giving efficacy to the federal powers might be added those which belong to the executive and judiciary departments: but as these are reserved for particular examination in another place, I pass them over in this. We have now reviewed, in detail, all the articles composing the sum or quantity of power delegated by the proposed Constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union. The question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the Union shall be established; or, in other words, whether the Union itself shall be preserved.

PUBLIUS.

The Alleged Danger From the Powers of the Union to the State Governments Considered
For the Independent Journal.

Author: James Madison

To the People of the State of New York:

HAVING shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States. The adversaries to the plan of the convention, instead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal government, have exhausted themselves in a secondary inquiry into the possible consequences of the proposed degree of power to the governments of the particular States. But if the Union, as has been shown, be essential to the security of the people of America against foreign danger; if it be essential to their security against contentions and wars among the different States; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be,

Let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shown. How far the unsacrificed residue will be endangered, is the question before us. Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the State governments. The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale. We have seen, in all the examples of ancient and modern confederacies, the strongest tendency continually betraying itself in the members, to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments. Although, in most of these examples, the system has been so dissimilar from that under consideration as greatly to weaken any inference concerning the latter from the fate of the former, yet, as the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. In the Achaean league it is probable that the federal head had a degree and species of power, which gave it a considerable likeness to the government framed by the convention. The Lycian Confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it. Yet history does not inform us that either of them ever degenerated, or tended to degenerate, into one consolidated government. On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities. These cases are the more worthy of our attention, as the external causes by which the component parts were pressed together were much more numerous and powerful than in our case; and consequently less powerful ligaments within would be sufficient to bind the members to the head, and to each other. In the feudal system, we have seen a similar propensity exemplified. Notwithstanding the want of proper sympathy in every instance between the local sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter, it usually happened that the local sovereigns prevailed in the rivalship for encroachments.

Had no external dangers enforced internal harmony and subordination, and particularly, had the local sovereigns possessed the affections of the people, the great kingdoms in Europe would at this time consist of as many independent princes as there were formerly feudatory barons. The State government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other. The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures. Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. On the other side, the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little, if at all, to the local influence of its members. The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States.

There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive, and judiciary departments of thirteen and more States, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. Compare the members of the three great departments of the thirteen States, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single government of the Union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability, or, I may add, of possibility, and in this view alone, we may pronounce the advantage of the States to be decisive. If the federal government is to have collectors of revenue, the State governments will have theirs also. And as those of the former will be principally on the seacoast, and not very numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side.

It is true, that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the States to supply their quotas by previous collections of their own; and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States. Indeed it is extremely probable, that in other instances, particularly in the organization of the judicial power, the officers of the States will be clothed with the correspondent authority of the Union.

Should it happen, however, that separate collectors of internal revenue should be appointed under the federal government, the influence of the whole number would not bear a comparison with that of the multitude of State officers in the opposite scale.

Within every district to which a federal collector would be allotted, there would not be less than thirty or forty, or even more, officers of different descriptions, and many of them persons of character and weight, whose influence would lie on the side of the State. The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. The change relating to taxation may be regarded as the most important; and yet the present Congress have as complete authority to REQUIRE of the States indefinite supplies of money for the common defense and general welfare, as the future Congress will have to require them of individual citizens; and the latter will be no more bound than the States themselves have been, to pay the quotas respectively taxed on them. Had the States complied punctually with the articles of Confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion, that the State governments would have lost their constitutional powers, and have gradually undergone an entire consolidation. To maintain that such an event would have ensued, would be to say at once, that the existence of the State governments is incompatible with any system whatever that accomplishes the essential purposes of the Union.

PUBLIUS.

The Influence of the State and Federal Governments Compared
From the New York Packet.
Tuesday, January 29, 1788.

Author: James Madison

To the People of the State of New York:

RESUMING the subject of the last paper, I proceed to inquire whether the federal government or the State governments will have the advantage with regard to the predilection and support of the people. Notwithstanding the different modes in which they are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the United States.

I assume this position here as it respects the first, reserving the proofs for another place. The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents. Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States.

Into the administration of these a greater number of individuals will expect to rise. From the gift of these a greater number of offices and emoluments will flow. By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely conversant. And with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments; on the side of these, therefore, the popular bias may well be expected most strongly to incline. Experience speaks the same language in this case. The federal administration, though hitherto very defective in comparison with what may be hoped under a better system, had, during the war, and particularly whilst the independent fund of paper emissions was in credit, an activity and importance as great as it can well have in any future circumstances whatever.

It was engaged, too, in a course of measures which had for their object the protection of everything that was dear, and the acquisition of everything that could be desirable to the people at large. It was, nevertheless, invariably found, after the transient enthusiasm for the early Congresses was over, that the attention and attachment of the people were turned anew to their own particular governments; that the federal council was at no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens. If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered. The remaining points on which I propose to compare the federal and State governments, are the disposition and the faculty they may respectively possess, to resist and frustrate the measures of each other. It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government. So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage.

But in a distinct and very important point of view, the advantage will lie on the same side. The prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the States; whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States. Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. And if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular State, how can it be imagined that they will make the aggregate prosperity of the Union, and the dignity and respectability of its government, the objects of their affections and consultations? For the same reason that the members of the State legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects. The States will be to the latter what counties and towns are to the former. Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual States. What is the spirit that has in general characterized the proceedings of Congress? A perusal of their journals, as well as the candid acknowledgments of such as have had a seat in that assembly, will inform us, that the members have but too frequently displayed the character, rather of partisans of their respective States, than of impartial guardians of a common interest; that where on one occasion improper sacrifices have been made of local considerations, to the aggrandizement of the federal government, the great interests of the nation have suffered on a hundred, from an undue attention to the local prejudices, interests, and views of the particular States. I mean not by these reflections to insinuate, that the new federal government will not embrace a more enlarged plan of policy than the existing government may have pursued; much less, that its views will be as confined as those of the State legislatures; but only that it will partake sufficiently of the spirit of both, to be disinclined to invade the rights of the individual States, or the preorgatives of their governments. The motives on the part of the State governments, to augment their prerogatives by defalcations from the federal government, will be overruled by no reciprocal predispositions in the members. Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty.

On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other.

The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter. The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people. On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.

PUBLIUS.

The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts
From the New York Packet.
Friday, February 1, 1788.

Author: James Madison

To the People of the State of New York:

HAVING reviewed the general form of the proposed government and the general mass of power allotted to it, I proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts. One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded.

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavor, in the first place, to ascertain his meaning on this point. The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn. On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote. From these facts, by which Montesquieu was guided, it may clearly be inferred that, in 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,” he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department. The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. “When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. ” Again: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.

Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR. ” Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.

If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring “that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other AS THE NATURE OF A FREE GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE BOND OF UNITY AND AMITY. ” Her constitution accordingly mixes these departments in several respects. The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments. The President, who is the head of the executive department, is the presiding member also of the Senate; and, besides an equal vote in all cases, has a casting vote in case of a tie. The executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department. Several of the officers of state are also appointed by the legislature. And the members of the judiciary department are appointed by the executive department. The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them. ” This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. In the very Constitution to which it is prefixed, a partial mixture of powers has been admitted. The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments. The members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches.

Lastly, a number of the officers of government are annually appointed by the legislative department. As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the Constitution have, in this last point at least, violated the rule established by themselves. I pass over the constitutions of Rhode Island and Connecticut, because they were formed prior to the Revolution, and even before the principle under examination had become an object of political attention. The constitution of New York contains no declaration on this subject; but appears very clearly to have been framed with an eye to the danger of improperly blending the different departments. It gives, nevertheless, to the executive magistrate, a partial control over the legislative department; and, what is more, gives a like control to the judiciary department; and even blends the executive and judiciary departments in the exercise of this control. In its council of appointment members of the legislative are associated with the executive authority, in the appointment of officers, both executive and judiciary. And its court for the trial of impeachments and correction of errors is to consist of one branch of the legislature and the principal members of the judiciary department. The constitution of New Jersey has blended the different powers of government more than any of the preceding. The governor, who is the executive magistrate, is appointed by the legislature; is chancellor and ordinary, or surrogate of the State; is a member of the Supreme Court of Appeals, and president, with a casting vote, of one of the legislative branches. The same legislative branch acts again as executive council of the governor, and with him constitutes the Court of Appeals. The members of the judiciary department are appointed by the legislative department and removable by one branch of it, on the impeachment of the other. According to the constitution of Pennsylvania, the president, who is the head of the executive department, is annually elected by a vote in which the legislative department predominates. In conjunction with an executive council, he appoints the members of the judiciary department, and forms a court of impeachment for trial of all officers, judiciary as well as executive. The judges of the Supreme Court and justices of the peace seem also to be removable by the legislature; and the executive power of pardoning in certain cases, to be referred to the same department. The members of the executive counoil are made EX-OFFICIO justices of peace throughout the State. In Delaware, the chief executive magistrate is annually elected by the legislative department. The speakers of the two legislative branches are vice-presidents in the executive department. The executive chief, with six others, appointed, three by each of the legislative branches constitutes the Supreme Court of Appeals; he is joined with the legislative department in the appointment of the other judges. Throughout the States, it appears that the members of the legislature may at the same time be justices of the peace; in this State, the members of one branch of it are EX-OFFICIO justices of the peace; as are also the members of the executive council. The principal officers of the executive department are appointed by the legislative; and one branch of the latter forms a court of impeachments. All officers may be removed on address of the legislature. Maryland has adopted the maxim in the most unqualified terms; declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other. Her constitution, notwithstanding, makes the executive magistrate appointable by the legislative department; and the members of the judiciary by the executive department. The language of Virginia is still more pointed on this subject. Her constitution declares, “that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly. ” Yet we find not only this express exception, with respect to the members of the irferior courts, but that the chief magistrate, with his executive council, are appointable by the legislature; that two members of the latter are triennially displaced at the pleasure of the legislature; and that all the principal offices, both executive and judiciary, are filled by the same department. The executive prerogative of pardon, also, is in one case vested in the legislative department. The constitution of North Carolina, which declares “that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other,” refers, at the same time, to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department. In South Carolina, the constitution makes the executive magistracy eligible by the legislative department.

It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the State.

In the constitution of Georgia, where it is declared “that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other,” we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally exercised by the same authority. Even justices of the peace are to be appointed by the legislature. In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State governments. I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America. This interesting subject will be resumed in the ensuing paper.

PUBLIUS.

These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other
From the New York Packet.
Friday, February 1, 1788.

Author: James Madison

To the People of the State of New York:

IT WAS shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.

After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others.

What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. I have appealed to our own experience for the truth of what I advance on this subject. Were it necessary to verify this experience by particular proofs, they might be multiplied without end. I might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. I might collect vouchers in abundance from the records and archives of every State in the Union. But as a more concise, and at the same time equally satisfactory, evidence, I will refer to the example of two States, attested by two unexceptionable authorities. The first example is that of Virginia, a State which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. The authority in support of it is Mr. Jefferson, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. In order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting “Notes on the State of Virginia,” p. 195. “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will 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. As little will it avail us, that they are chosen by ourselves. An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.

For this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of Assembly, which will render them obligatory on the other branches. They have accordingly, IN MANY instances, DECIDED RIGHTS which should have been left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING HABITUAL AND FAMILIAR. “The other State which I shall take for an example is Pennsylvania; and the other authority, the Council of Censors, which assembled in the years 1783 and 1784. A part of the duty of this body, as marked out by the constitution, was “to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution. ” In the execution of this trust, the council were necessarily led to a comparison of both the legislative and executive proceedings, with the constitutional powers of these departments; and from the facts enumerated, and to the truth of most of which both sides in the council subscribed, it appears that the constitution had been flagrantly violated by the legislature in a variety of important instances. A great number of laws had been passed, violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature. The constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution.

Executive powers had been usurped. The salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied; and cases belonging to the judiciary department frequently drawn within legislative cognizance and determination. Those who wish to see the several particulars falling under each of these heads, may consult the journals of the council, which are in print. Some of them, it will be found, may be imputable to peculiar circumstances connected with the war; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government. It appears, also, that the executive department had not been innocent of frequent breaches of the constitution. There are three observations, however, which ought to be made on this head: FIRST, a great proportion of the instances were either immediately produced by the necessities of the war, or recommended by Congress or the commander-in-chief; SECONDLY, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; THIRDLY, the executive department of Pennsylvania is distinguished from that of the other States by the number of members composing it. In this respect, it has as much affinity to a legislative assembly as to an executive council. And being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course, be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands.

The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.

PUBLIUS.

Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention
From the New York Packet.
Tuesday, February 5, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

THE author of the “Notes on the State of Virginia,” quoted in the last paper, has subjoined to that valuable work the draught of a constitution, which had been prepared in order to be laid before a convention, expected to be called in 1783, by the legislature, for the establishment of a constitution for that commonwealth. The plan, like every thing from the same pen, marks a turn of thinking, original, comprehensive, and accurate; and is the more worthy of attention as it equally displays a fervent attachment to republican government and an enlightened view of the dangerous propensities against which it ought to be guarded.

One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present inquiry, ought not to be overlooked. His proposition is, “that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or CORRECTING BREACHES OF IT, a convention shall be called for the purpose. “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance? There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits. In the first place, the provision does not reach the case of a combination of two of the departments against the third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from its remedial provision. I do not dwell, however, on this objection, because it may be thought to be rather against the modification of the principle, than against the principle itself. In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ANCIENT as well as NUMEROUS, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended. But the greatest objection of all is, that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. The appeals to the people, therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numberous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue. But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges.

The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them. It might, however, sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious coloring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. The PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.

We found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose. How far the provisions of a different nature contained in the plan above quoted might be adequate, I do not examine. Some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision.

PUBLIUS.

Periodic Appeals to the People Considered
From the New York Packet.
Tuesday, February 5, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION. It will be attended to, that in the examination of these expedients, I confine myself to their aptitude for ENFORCING the Constitution, by keeping the several departments of power within their due bounds, without particularly considering them as provisions for ALTERING the Constitution itself. In the first view, appeals to the people at fixed periods appear to be nearly as ineligible as appeals on particular occasions as they emerge.

If the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. In the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. Is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years? In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. And in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated. The scheme of revising the constitution, in order to correct recent breaches of it, as well as for other purposes, has been actually tried in one of the States. One of the objects of the Council of Censors which met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire, “whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other. ” This important and novel experiment in politics merits, in several points of view, very particular attention. In some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive. But as applied to the case under consideration, it involves some facts, which I venture to remark, as a complete and satisfactory illustration of the reasoning which I have employed. First. It appears, from the names of the gentlemen who composed the council, that some, at least, of its most active members had also been active and leading characters in the parties which pre-existed in the State.

Secondly. It appears that the same active and leading members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution. Two of the members had been vice-presidents of the State, and several other members of the executive council, within the seven preceding years. One of them had been speaker, and a number of others distinguished members, of the legislative assembly within the same period.

Thirdly. Every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. Every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, PASSION, not REASON, must have presided over their decisions. When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same.

Fourthly. It is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places.

Fifthly. I have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. It even appears, if I mistake not, that in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest. This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy. This conclusion cannot be invalidated by alleging that the State in which the experiment was made was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. Is it to be presumed, that at any future septennial epoch the same State will be free from parties? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them? Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty. Were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.

PUBLIUS.

To the People of the State of New York:

TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. 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. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

PUBLIUS.

The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments
From the New York Packet.
Friday, February 8, 1788.

Author: Alexander Hamilton or James Madison

The House of Representatives
From the New York Packet.
Friday, February 8, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

FROM the more general inquiries pursued in the four last papers, I pass on to a more particular examination of the several parts of the government. I shall begin with the House of Representatives. The first view to be taken of this part of the government relates to the qualifications of the electors and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the State legislatures.

The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone. To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention appears, therefore, to be the best that lay within their option.

It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution. The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election, be an inhabitant of the State he is to represent; and, during the time of his service, must be in no office under the United States. Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith. The term for which the representatives are to be elected falls under a second view which may be taken of this branch. In order to decide on the propriety of this article, two questions must be considered: first, whether biennial elections will, in this case, be safe; secondly, whether they be necessary or useful. First. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. But what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation, and must depend on a variety of circumstances with which it may be connected. Let us consult experience, the guide that ought always to be followed whenever it can be found. The scheme of representation, as a substitute for a meeting of the citizens in person, being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples. And even here, in order to avoid a research too vague and diffusive, it will be proper to confine ourselves to the few examples which are best known, and which bear the greatest analogy to our particular case. The first to which this character ought to be applied, is the House of Commons in Great Britain. The history of this branch of the English Constitution, anterior to the date of Magna Charta, is too obscure to yield instruction. The very existence of it has been made a question among political antiquaries. The earliest records of subsequent date prove that parliaments were to SIT only every year; not that they were to be ELECTED every year. And even these annual sessions were left so much at the discretion of the monarch, that, under various pretexts, very long and dangerous intermissions were often contrived by royal ambition. To remedy this grievance, it was provided by a statute in the reign of Charles II. , that the intermissions should not be protracted beyond a period of three years. On the accession of William III. , when a revolution took place in the government, the subject was still more seriously resumed, and it was declared to be among the fundamental rights of the people that parliaments ought to be held FREQUENTLY. By another statute, which passed a few years later in the same reign, the term “frequently,” which had alluded to the triennial period settled in the time of Charles II. , is reduced to a precise meaning, it being expressly enacted that a new parliament shall be called within three years after the termination of the former. The last change, from three to seven years, is well known to have been introduced pretty early in the present century, under on alarm for the Hanoverian succession. From these facts it appears that the greatest frequency of elections which has been deemed necessary in that kingdom, for binding the representatives to their constituents, does not exceed a triennial return of them. And if we may argue from the degree of liberty retained even under septennial elections, and all the other vicious ingredients in the parliamentary constitution, we cannot doubt that a reduction of the period from seven to three years, with the other necessary reforms, would so far extend the influence of the people over their representatives as to satisfy us that biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the House of Representatives on their constituents. Elections in Ireland, till of late, were regulated entirely by the discretion of the crown, and were seldom repeated, except on the accession of a new prince, or some other contingent event. The parliament which commenced with George II. was continued throughout his whole reign, a period of about thirty-five years. The only dependence of the representatives on the people consisted in the right of the latter to supply occasional vacancies by the election of new members, and in the chance of some event which might produce a general new election.

The ability also of the Irish parliament to maintain the rights of their constituents, so far as the disposition might exist, was extremely shackled by the control of the crown over the subjects of their deliberation. Of late these shackles, if I mistake not, have been broken; and octennial parliaments have besides been established. What effect may be produced by this partial reform, must be left to further experience. The example of Ireland, from this view of it, can throw but little light on the subject. As far as we can draw any conclusion from it, it must be that if the people of that country have been able under all these disadvantages to retain any liberty whatever, the advantage of biennial elections would secure to them every degree of liberty, which might depend on a due connection between their representatives and themselves. Let us bring our inquiries nearer home. The example of these States, when British colonies, claims particular attention, at the same time that it is so well known as to require little to be said on it. The principle of representation, in one branch of the legislature at least, was established in all of them. But the periods of election were different. They varied from one to seven years. Have we any reason to infer, from the spirit and conduct of the representatives of the people, prior to the Revolution, that biennial elections would have been dangerous to the public liberties? The spirit which everywhere displayed itself at the commencement of the struggle, and which vanquished the obstacles to independence, is the best of proofs that a sufficient portion of liberty had been everywhere enjoyed to inspire both a sense of its worth and a zeal for its proper enlargement This remark holds good, as well with regard to the then colonies whose elections were least frequent, as to those whose elections were most frequent Virginia was the colony which stood first in resisting the parliamentary usurpations of Great Britain; it was the first also in espousing, by public act, the resolution of independence.

In Virginia, nevertheless, if I have not been misinformed, elections under the former government were septennial. This particular example is brought into view, not as a proof of any peculiar merit, for the priority in those instances was probably accidental; and still less of any advantage in SEPTENNIAL elections, for when compared with a greater frequency they are inadmissible; but merely as a proof, and I conceive it to be a very substantial proof, that the liberties of the people can be in no danger from BIENNIAL elections. The conclusion resulting from these examples will be not a little strengthened by recollecting three circumstances. The first is, that the federal legislature will possess a part only of that supreme legislative authority which is vested completely in the British Parliament; and which, with a few exceptions, was exercised by the colonial assemblies and the Irish legislature. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted. In the second place, it has, on another occasion, been shown that the federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several collateral legislatures, which other legislative bodies are not. And in the third place, no comparison can be made between the means that will be possessed by the more permanent branches of the federal government for seducing, if they should be disposed to seduce, the House of Representatives from their duty to the people, and the means of influence over the popular branch possessed by the other branches of the government above cited. With less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other.

PUBLIUS.

The Same Subject Continued: The House of Representatives
From the New York Packet.
Tuesday, February 12, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

I SHALL here, perhaps, be reminded of a current observation, “that where annual elections end, tyranny begins. ” If it be true, as has often been remarked, that sayings which become proverbial are generally founded in reason, it is not less true, that when once established, they are often applied to cases to which the reason of them does not extend. I need not look for a proof beyond the case before us. What is the reason on which this proverbial observation is founded? No man will subject himself to the ridicule of pretending that any natural connection subsists between the sun or the seasons, and the period within which human virtue can bear the temptations of power. Happily for mankind, liberty is not, in this respect, confined to any single point of time; but lies within extremes, which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society. The election of magistrates might be, if it were found expedient, as in some instances it actually has been, daily, weekly, or monthly, as well as annual; and if circumstances may require a deviation from the rule on one side, why not also on the other side? Turning our attention to the periods established among ourselves, for the election of the most numerous branches of the State legislatures, we find them by no means coinciding any more in this instance, than in the elections of other civil magistrates. In Connecticut and Rhode Island, the periods are half-yearly. In the other States, South Carolina excepted, they are annual. In South Carolina they are biennial as is proposed in the federal government. Here is a difference, as four to one, between the longest and shortest periods; and yet it would be not easy to show, that Connecticut or Rhode Island is better governed, or enjoys a greater share of rational liberty, than South Carolina; or that either the one or the other of these States is distinguished in these respects, and by these causes, from the States whose elections are different from both. In searching for the grounds of this doctrine, I can discover but one, and that is wholly inapplicable to our case. The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. Wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government. Even in Great Britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable, as well with regard to the Constitution, as the ordinary objects of legislative provision. They have accordingly, in several instances, actually changed, by legislative acts, some of the most fundamental articles of the government. They have in particular, on several occasions, changed the period of election; and, on the last occasion, not only introduced septennial in place of triennial elections, but by the same act, continued themselves in place four years beyond the term for which they were elected by the people. An attention to these dangerous practices has produced a very natural alarm in the votaries of free government, of which frequency of elections is the corner-stone; and has led them to seek for some security to liberty, against the danger to which it is exposed. Where no Constitution, paramount to the government, either existed or could be obtained, no constitutional security, similar to that established in the United States, was to be attempted. Some other security, therefore, was to be sought for; and what better security would the case admit, than that of selecting and appealing to some simple and familiar portion of time, as a standard for measuring the danger of innovations, for fixing the national sentiment, and for uniting the patriotic exertions? The most simple and familiar portion of time, applicable to the subject was that of a year; and hence the doctrine has been inculcated by a laudable zeal, to erect some barrier against the gradual innovations of an unlimited government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point of annual elections. But what necessity can there be of applying this expedient to a government limited, as the federal government will be, by the authority of a paramount Constitution? Or who will pretend that the liberties of the people of America will not be more secure under biennial elections, unalterably fixed by such a Constitution, than those of any other nation would be, where elections were annual, or even more frequent, but subject to alterations by the ordinary power of the government? The second question stated is, whether biennial elections be necessary or useful. The propriety of answering this question in the affirmative will appear from several very obvious considerations. No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate. A part of this knowledge may be acquired by means of information which lie within the compass of men in private as well as public stations. Another part can only be attained, or at least thoroughly attained, by actual experience in the station which requires the use of it. The period of service, ought, therefore, in all such cases, to bear some proportion to the extent of practical knowledge requisite to the due performance of the service. The period of legislative service established in most of the States for the more numerous branch is, as we have seen, one year. The question then may be put into this simple form: does the period of two years bear no greater proportion to the knowledge requisite for federal legislation than one year does to the knowledge requisite for State legislation? The very statement of the question, in this form, suggests the answer that ought to be given to it. In a single State, the requisite knowledge relates to the existing laws which are uniform throughout the State, and with which all the citizens are more or less conversant; and to the general affairs of the State, which lie within a small compass, are not very diversified, and occupy much of the attention and conversation of every class of people. The great theatre of the United States presents a very different scene. The laws are so far from being uniform, that they vary in every State; whilst the public affairs of the Union are spread throughout a very extensive region, and are extremely diversified by t e local affairs connected with them, and can with difficulty be correctly learnt in any other place than in the central councils to which a knowledge of them will be brought by the representatives of every part of the empire. Yet some knowledge of the affairs, and even of the laws, of all the States, ought to be possessed by the members from each of the States. How can foreign trade be properly regulated by uniform laws, without some acquaintance with the commerce, the ports, the usages, and the regulatious of the different States? How can the trade between the different States be duly regulated, without some knowledge of their relative situations in these and other respects? How can taxes be judiciously imposed and effectually collected, if they be not accommodated to the different laws and local circumstances relating to these objects in the different States? How can uniform regulations for the militia be duly provided, without a similar knowledge of many internal circumstances by which the States are distinguished from each other? These are the principal objects of federal legislation, and suggest most forcibly the extensive information which the representatives ought to acquire. The other interior objects will require a proportional degree of information with regard to them. It is true that all these difficulties will, by degrees, be very much diminished. The most laborious task will be the proper inauguration of the government and the primeval formation of a federal code. Improvements on the first draughts will every year become both easier and fewer. Past transactions of the government will be a ready and accurate source of information to new members. The affairs of the Union will become more and more objects of curiosity and conversation among the citizens at large. And the increased intercourse among those of different States will contribute not a little to diffuse a mutual knowledge of their affairs, as this again will contribute to a general assimilation of their manners and laws. But with all these abatements, the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single State, as to justify the longer period of service assigned to those who are to transact it. A branch of knowledge which belongs to the acquirements of a federal representative, and which has not been mentioned is that of foreign affairs. In regulating our own commerce he ought to be not only acquainted with the treaties between the United States and other nations, but also with the commercial policy and laws of other nations. He ought not to be altogether ignorant of the law of nations; for that, as far as it is a proper object of municipal legislation, is submitted to the federal government.

And although the House of Representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and co-operation. Some portion of this knowledge may, no doubt, be acquired in a man’s closet; but some of it also can only be derived from the public sources of information; and all of it will be acquired to best effect by a practical attention to the subject during the period of actual service in the legislature.

There are other considerations, of less importance, perhaps, but which are not unworthy of notice. The distance which many of the representatives will be obliged to travel, and the arrangements rendered necessary by that circumstance, might be much more serious objections with fit men to this service, if limited to a single year, than if extended to two years. No argument can be drawn on this subject, from the case of the delegates to the existing Congress. They are elected annually, it is true; but their re-election is considered by the legislative assemblies almost as a matter of course. The election of the representatives by the people would not be governed by the same principle. A few of the members, as happens in all such assemblies, will possess superior talents; will, by frequent reelections, become members of long standing; will be thoroughly masters of the public business, and perhaps not unwilling to avail themselves of those advantages. The greater the proportion of new members, and the less the information of the bulk of the members the more apt will they be to fall into the snares that may be laid for them. This remark is no less applicable to the relation which will subsist between the House of Representatives and the Senate. It is an inconvenience mingled with the advantages of our frequent elections even in single States, where they are large, and hold but one legislative session in a year, that spurious elections cannot be investigated and annulled in time for the decision to have its due effect. If a return can be obtained, no matter by what unlawful means, the irregular member, who takes his seat of course, is sure of holding it a sufficient time to answer his purposes. Hence, a very pernicious encouragement is given to the use of unlawful means, for obtaining irregular returns. Were elections for the federal legislature to be annual, this practice might become a very serious abuse, particularly in the more distant States. Each house is, as it necessarily must be, the judge of the elections, qualifications, and returns of its members; and whatever improvements may be suggested by experience, for simplifying and accelerating the process in disputed cases, so great a portion of a year would unavoidably elapse, before an illegitimate member could be dispossessed of his seat, that the prospect of such an event would be little check to unfair and illicit means of obtaining a seat. All these considerations taken together warrant us in affirming, that biennial elections will be as useful to the affairs of the public as we have seen that they will be safe to the liberty of the people.

PUBLIUS.

The Apportionment of Members Among the States
From the New York Packet.
Tuesday, February 12, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

THE next view which I shall take of the House of Representatives relates to the appointment of its members to the several States which is to be determined by the same rule with that of direct taxes. It is not contended that the number of people in each State ought not to be the standard for regulating the proportion of those who are to represent the people of each State. The establishment of the same rule for the appointment of taxes, will probably be as little contested; though the rule itself in this case, is by no means founded on the same principle. In the former case, the rule is understood to refer to the personal rights of the people, with which it has a natural and universal connection.

In the latter, it has reference to the proportion of wealth, of which it is in no case a precise measure, and in ordinary cases a very unfit one. But notwithstanding the imperfection of the rule as applied to the relative wealth and contributions of the States, it is evidently the least objectionable among the practicable rules, and had too recently obtained the general sanction of America, not to have found a ready preference with the convention. All this is admitted, it will perhaps be said; but does it follow, from an admission of numbers for the measure of representation, or of slaves combined with free citizens as a ratio of taxation, that slaves ought to be included in the numerical rule of representation? Slaves are considered as property, not as persons. They ought therefore to be comprehended in estimates of taxation which are founded on property, and to be excluded from representation which is regulated by a census of persons. This is the objection, as I understand it, stated in its full force. I shall be equally candid in stating the reasoning which may be offered on the opposite side. “We subscribe to the doctrine,” might one of our Southern brethren observe, “that representation relates more immediately to persons, and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves. But we must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property. In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property. The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied, that these are the proper criterion; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants. “This question may be placed in another light. It is agreed on all sides, that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation. Would the convention have been impartial or consistent, if they had rejected the slaves from the list of inhabitants, when the shares of representation were to be calculated, and inserted them on the lists when the tariff of contributions was to be adjusted? Could it be reasonably expected, that the Southern States would concur in a system, which considered their slaves in some degree as men, when burdens were to be imposed, but refused to consider them in the same light, when advantages were to be conferred? Might not some surprise also be expressed, that those who reproach the Southern States with the barbarous policy of considering as property a part of their human brethren, should themselves contend, that the government to which all the States are to be parties, ought to consider this unfortunate race more completely in the unnatural light of property, than the very laws of which they complain? “It may be replied, perhaps, that slaves are not included in the estimate of representatives in any of the States possessing them. They neither vote themselves nor increase the votes of their masters. Upon what principle, then, ought they to be taken into the federal estimate of representation? In rejecting them altogether, the Constitution would, in this respect, have followed the very laws which have been appealed to as the proper guide. “This objection is repelled by a single observation. It is a fundamental principle of the proposed Constitution, that as the aggregate number of representatives allotted to the several States is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate. The qualifications on which the right of suffrage depend are not, perhaps, the same in any two States. In some of the States the difference is very material. In every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State, who will be included in the census by which the federal Constitution apportions the representatives.

In this point of view the Southern States might retort the complaint, by insisting that the principle laid down by the convention required that no regard should be had to the policy of particular States towards their own inhabitants; and consequently, that the slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other States, are not admitted to all the rights of citizens. A rigorous adherence, however, to this principle, is waived by those who would be gainers by it. All that they ask is that equal moderation be shown on the other side. Let the case of the slaves be considered, as it is in truth, a peculiar one. Let the compromising expedient of the Constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the SLAVE as divested of two fifths of the MAN. “After all, may not another ground be taken on which this article of the Constitution will admit of a still more ready defense? We have hitherto proceeded on the idea that representation related to persons only, and not at all to property. But is it a just idea?

Government is instituted no less for protection of the property, than of the persons, of individuals. The one as well as the other, therefore, may be considered as represented by those who are charged with the government. Upon this principle it is, that in several of the States, and particularly in the State of New York, one branch of the government is intended more especially to be the guardian of property, and is accordingly elected by that part of the society which is most interested in this object of government. In the federal Constitution, this policy does not prevail. The rights of property are committed into the same hands with the personal rights. Some attention ought, therefore, to be paid to property in the choice of those hands. “For another reason, the votes allowed in the federal legislature to the people of each State, ought to bear some proportion to the comparative wealth of the States. States have not, like individuals, an influence over each other, arising from superior advantages of fortune. If the law allows an opulent citizen but a single vote in the choice of his representative, the respect and consequence which he derives from his fortunate situation very frequently guide the votes of others to the objects of his choice; and through this imperceptible channel the rights of property are conveyed into the public representation. A State possesses no such influence over other States. It is not probable that the richest State in the Confederacy will ever influence the choice of a single representative in any other State. Nor will the representatives of the larger and richer States possess any other advantage in the federal legislature, over the representatives of other States, than what may result from their superior number alone. As far, therefore, as their superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior share of representation. The new Constitution is, in this respect, materially different from the existing Confederation, as well as from that of the United Netherlands, and other similar confederacies. In each of the latter, the efficacy of the federal resolutions depends on the subsequent and voluntary resolutions of the states composing the union. Hence the states, though possessing an equal vote in the public councils, have an unequal influence, corresponding with the unequal importance of these subsequent and voluntary resolutions. Under the proposed Constitution, the federal acts will take effect without the necessary intervention of the individual States. They will depend merely on the majority of votes in the federal legislature, and consequently each vote, whether proceeding from a larger or smaller State, or a State more or less wealthy or powerful, will have an equal weight and efficacy: in the same manner as the votes individually given in a State legislature, by the representatives of unequal counties or other districts, have each a precise equality of value and effect; or if there be any difference in the case, it proceeds from the difference in the personal character of the individual representative, rather than from any regard to the extent of the district from which he comes. “Such is the reasoning which an advocate for the Southern interests might employ on this subject; and although it may appear to be a little strained in some points, yet, on the whole, I must confess that it fully reconciles me to the scale of representation which the convention have established. In one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. As the accuracy of the census to be obtained by the Congress will necessarily depend, in a considerable degree on the disposition, if not on the co-operation, of the States, it is of great importance that the States should feel as little bias as possible, to swell or to reduce the amount of their numbers. Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. Were the rule to decide their share of taxation alone, a contrary temptation would prevail. By extending the rule to both objects, the States will have opposite interests, which will control and balance each other, and produce the requisite impartiality.

PUBLIUS.

The Total Number of the House of Representatives
From the New York Packet.
Friday, February 15, 1788.

Source: ConsourceClick Here To View Original Document.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

THE number of which the House of Representatives is to consist, forms another and a very interesting point of view, under which this branch of the federal legislature may be contemplated. Scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention, by the weight of character and the apparent force of argument with which it has been assailed. The charges exhibited against it are, first, that so small a number of representatives will be an unsafe depositary of the public interests; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents; thirdly, that they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives.

In general it may be remarked on this subject, that no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature; nor is there any point on which the policy of the several States is more at variance, whether we compare their legislative assemblies directly with each other, or consider the proportions which they respectively bear to the number of their constituents. Passing over the difference between the smallest and largest States, as Delaware, whose most numerous branch consists of twenty-one representatives, and Massachusetts, where it amounts to between three and four hundred, a very considerable difference is observable among States nearly equal in population. The number of representatives in Pennsylvania is not more than one fifth of that in the State last mentioned. New York, whose population is to that of South Carolina as six to five, has little more than one third of the number of representatives. As great a disparity prevails between the States of Georgia and Delaware or Rhode Island. In Pennsylvania, the representatives do not bear a greater proportion to their constituents than of one for every four or five thousand. In Rhode Island, they bear a proportion of at least one for every thousand. And according to the constitution of Georgia, the proportion may be carried to one to every ten electors; and must unavoidably far exceed the proportion in any of the other States.

Another general remark to be made is, that the ratio between the representatives and the people ought not to be the same where the latter are very numerous as where they are very few. Were the representatives in Virginia to be regulated by the standard in Rhode Island, they would, at this time, amount to between four and five hundred; and twenty or thirty years hence, to a thousand. On the other hand, the ratio of Pennsylvania, if applied to the State of Delaware, would reduce the representative assembly of the latter to seven or eight members. Nothing can be more fallacious than to found our political calculations on arithmetical principles. Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.

It is necessary also to recollect here the observations which were applied to the case of biennial elections. For the same reason that the limited powers of the Congress, and the control of the State legislatures, justify less frequent elections than the public safely might otherwise require, the members of the Congress need be less numerous than if they possessed the whole power of legislation, and were under no other than the ordinary restraints of other legislative bodies.

With these general ideas in our mind, let us weigh the objections which have been stated against the number of members proposed for the House of Representatives. It is said, in the first place, that so small a number cannot be safely trusted with so much power.

The number of which this branch of the legislature is to consist, at the outset of the government, will be sixty five. Within three years a census is to be taken, when the number may be augmented to one for every thirty thousand inhabitants; and within every successive period of ten years the census is to be renewed, and augmentations may continue to be made under the above limitation. It will not be thought an extravagant conjecture that the first census will, at the rate of one for every thirty thousand, raise the number of representatives to at least one hundred. Estimating the negroes in the proportion of three fifths, it can scarcely be doubted that the population of the United States will by that time, if it does not already, amount to three millions. At the expiration of twenty-five years, according to the computed rate of increase, the number of representatives will amount to two hundred, and of fifty years, to four hundred. This is a number which, I presume, will put an end to all fears arising from the smallness of the body. I take for granted here what I shall, in answering the fourth objection, hereafter show, that the number of representatives will be augmented from time to time in the manner provided by the Constitution. On a contrary supposition, I should admit the objection to have very great weight indeed.

The true question to be decided then is, whether the smallness of the number, as a temporary regulation, be dangerous to the public liberty? Whether sixty-five members for a few years, and a hundred or two hundred for a few more, be a safe depositary for a limited and well-guarded power of legislating for the United States? I must own that I could not give a negative answer to this question, without first obliterating every impression which I have received with regard to the present genius of the people of America, the spirit which actuates the State legislatures, and the principles which are incorporated with the political character of every class of citizens I am unable to conceive that the people of America, in their present temper, or under any circumstances which can speedily happen, will choose, and every second year repeat the choice of, sixty-five or a hundred men who would be disposed to form and pursue a scheme of tyranny or treachery. I am unable to conceive that the State legislatures, which must feel so many motives to watch, and which possess so many means of counteracting, the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their common constituents. I am equally unable to conceive that there are at this time, or can be in any short time, in the United States, any sixty-five or a hundred men capable of recommending themselves to the choice of the people at large, who would either desire or dare, within the short space of two years, to betray the solemn trust committed to them. What change of circumstances, time, and a fuller population of our country may produce, requires a prophetic spirit to declare, which makes no part of my pretensions. But judging from the circumstances now before us, and from the probable state of them within a moderate period of time, I must pronounce that the liberties of America cannot be unsafe in the number of hands proposed by the federal Constitution.

From what quarter can the danger proceed? Are we afraid of foreign gold? If foreign gold could so easily corrupt our federal rulers and enable them to ensnare and betray their constituents, how has it happened that we are at this time a free and independent nation? The Congress which conducted us through the Revolution was a less numerous body than their successors will be; they were not chosen by, nor responsible to, their fellow citizens at large; though appointed from year to year, and recallable at pleasure, they were generally continued for three years, and prior to the ratification of the federal articles, for a still longer term.

They held their consultations always under the veil of secrecy; they had the sole transaction of our affairs with foreign nations; through the whole course of the war they had the fate of their country more in their hands than it is to be hoped will ever be the case with our future representatives; and from the greatness of the prize at stake, and the eagerness of the party which lost it, it may well be supposed that the use of other means than force would not have been scrupled. Yet we know by happy experience that the public trust was not betrayed; nor has the purity of our public councils in this particular ever suffered, even from the whispers of calumny.

Is the danger apprehended from the other branches of the federal government? But where are the means to be found by the President, or the Senate, or both? Their emoluments of office, it is to be presumed, will not, and without a previous corruption of the House of Representatives cannot, more than suffice for very different purposes; their private fortunes, as they must all be American citizens, cannot possibly be sources of danger. The only means, then, which they can possess, will be in the dispensation of appointments. Is it here that suspicion rests her charge? Sometimes we are told that this fund of corruption is to be exhausted by the President in subduing the virtue of the Senate. Now, the fidelity of the other House is to be the victim. The improbability of such a mercenary and perfidious combination of the several members of government, standing on as different foundations as republican principles will well admit, and at the same time accountable to the society over which they are placed, ought alone to quiet this apprehension. But, fortunately, the Constitution has provided a still further safeguard. The members of the Congress are rendered ineligible to any civil offices that may be created, or of which the emoluments may be increased, during the term of their election. No offices therefore can be dealt out to the existing members but such as may become vacant by ordinary casualties: and to suppose that these would be sufficient to purchase the guardians of the people, selected by the people themselves, is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain. The sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.

PUBLIUS.

The Same Subject Continued: The Total Number of the House of Representatives
From the New York Packet.
Tuesday, February 19, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

THE SECOND charge against the House of Representatives is, that it will be too small to possess a due knowledge of the interests of its constituents. As this objection evidently proceeds from a comparison of the proposed number of representatives with the great extent of the United States, the number of their inhabitants, and the diversity of their interests, without taking into view at the same time the circumstances which will distinguish the Congress from other legislative bodies, the best answer that can be given to it will be a brief explanation of these peculiarities. It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority. What are to be the objects of federal legislation? Those which are of most importance, and which seem most to require local knowledge, are commerce, taxation, and the militia. A proper regulation of commerce requires much information, as has been elsewhere remarked; but as far as this information relates to the laws and local situation of each individual State, a very few representatives would be very sufficient vehicles of it to the federal councils. Taxation will consist, in a great measure, of duties which will be involved in the regulation of commerce. So far the preceding remark is applicable to this object. As far as it may consist of internal collections, a more diffusive knowledge of the circumstances of the State may be necessary. But will not this also be possessed in sufficient degree by a very few intelligent men, diffusively elected within the State? Divide the largest State into ten or twelve districts, and it will be found that there will be no peculiar local interests in either, which will not be within the knowledge of the representative of the district. Besides this source of information, the laws of the State, framed by representatives from every part of it, will be almost of themselves a sufficient guide. In every State there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act. A skillful individual in his closet with all the local codes before him, might compile a law on some subjects of taxation for the whole union, without any aid from oral information, and it may be expected that whenever internal taxes may be necessary, and particularly in cases requiring uniformity throughout the States, the more simple objects will be preferred. To be fully sensible of the facility which will be given to this branch of federal legislation by the assistance of the State codes, we need only suppose for a moment that this or any other State were divided into a number of parts, each having and exercising within itself a power of local legislation. Is it not evident that a degree of local information and preparatory labor would be found in the several volumes of their proceedings, which would very much shorten the labors of the general legislature, and render a much smaller number of members sufficient for it? The federal councils will derive great advantage from another circumstance. The representatives of each State will not only bring with them a considerable knowledge of its laws, and a local knowledge of their respective districts, but will probably in all cases have been members, and may even at the very time be members, of the State legislature, where all the local information and interests of the State are assembled, and from whence they may easily be conveyed by a very few hands into the legislature of the United States. The observations made on the subject of taxation apply with greater force to the case of the militia. For however different the rules of discipline may be in different States, they are the same throughout each particular State; and depend on circumstances which can differ but little in different parts of the same State. The attentive reader will discern that the reasoning here used, to prove the sufficiency of a moderate number of representatives, does not in any respect contradict what was urged on another occasion with regard to the extensive information which the representatives ought to possess, and the time that might be necessary for acquiring it. This information, so far as it may relate to local objects, is rendered necessary and difficult, not by a difference of laws and local circumstances within a single State, but of those among different States. Taking each State by itself, its laws are the same, and its interests but little diversified. A few men, therefore, will possess all the knowledge requisite for a proper representation of them. Were the interests and affairs of each individual State perfectly simple and uniform, a knowledge of them in one part would involve a knowledge of them in every other, and the whole State might be competently represented by a single member taken from any part of it. On a comparison of the different States together, we find a great dissimilarity in their laws, and in many other circumstances connected with the objects of federal legislation, with all of which the federal representatives ought to have some acquaintance. Whilst a few representatives, therefore, from each State, may bring with them a due knowledge of their own State, every representative will have much information to acquire concerning all the other States.

The changes of time, as was formerly remarked, on the comparative situation of the different States, will have an assimilating effect. The effect of time on the internal affairs of the States, taken singly, will be just the contrary. At present some of the States are little more than a society of husbandmen. Few of them have made much progress in those branches of industry which give a variety and complexity to the affairs of a nation. These, however, will in all of them be the fruits of a more advanced population, and will require, on the part of each State, a fuller representation. The foresight of the convention has accordingly taken care that the progress of population may be accompanied with a proper increase of the representative branch of the government. The experience of Great Britain, which presents to mankind so many political lessons, both of the monitory and exemplary kind, and which has been frequently consulted in the course of these inquiries, corroborates the result of the reflections which we have just made. The number of inhabitants in the two kingdoms of England and Scotland cannot be stated at less than eight millions. The representatives of these eight millions in the House of Commons amount to five hundred and fifty-eight.

Of this number, one ninth are elected by three hundred and sixty-four persons, and one half, by five thousand seven hundred and twenty-three persons. [1] It cannot be supposed that the half thus elected, and who do not even reside among the people at large, can add any thing either to the security of the people against the government, or to the knowledge of their circumstances and interests in the legislative councils. On the contrary, it is notorious, that they are more frequently the representatives and instruments of the executive magistrate, than the guardians and advocates of the popular rights. They might therefore, with great propriety, be considered as something more than a mere deduction from the real representatives of the nation. We will, however, consider them in this light alone, and will not extend the deduction to a considerable number of others, who do not reside among their constituents, are very faintly connected with them, and have very little particular knowledge of their affairs. With all these concessions, two hundred and seventy-nine persons only will be the depository of the safety, interest, and happiness of eight millions that is to say, there will be one representative only to maintain the rights and explain the situation OF TWENTY-EIGHT THOUSAND SIX HUNDRED AND SEVENTY constituents, in an assembly exposed to the whole force of executive influence, and extending its authority to every object of legislation within a nation whose affairs are in the highest degree diversified and complicated. Yet it is very certain, not only that a valuable portion of freedom has been preserved under all these circumstances, but that the defects in the British code are chargeable, in a very small proportion, on the ignorance of the legislature concerning the circumstances of the people. Allowing to this case the weight which is due to it, and comparing it with that of the House of Representatives as above explained it seems to give the fullest assurance, that a representative for every THIRTY THOUSAND INHABITANTS will render the latter both a safe and competent guardian of the interests which will be confided to it.

PUBLIUS.

The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation
From the New York Packet.
Tuesday, February 19, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

THE THIRD charge against the House of Representatives is, that it will be taken from that class of citizens which will have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few. Of all the objections which have been framed against the federal Constitution, this is perhaps the most extraordinary.

Whilst the objection itself is levelled against a pretended oligarchy, the principle of it strikes at the very root of republican government. The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. 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. Let me now ask what circumstance there is in the constitution of the House of Representatives that violates the principles of republican government, or favors the elevation of the few on the ruins of the many? Let me ask whether every circumstance is not, on the contrary, strictly conformable to these principles, and scrupulously impartial to the rights and pretensions of every class and description of citizens? 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. Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. 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. If we consider the situation of the men on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents. In the first place, as they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle them to it, and which promise a sincere and scrupulous regard to the nature of their engagements. In the second place, they will enter into the public service under circumstances which cannot fail to produce a temporary affection at least to their constituents. There is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which, apart from all considerations of interest, is some pledge for grateful and benevolent returns.

Ingratitude is a common topic of declamation against human nature; and it must be confessed that instances of it are but too frequent and flagrant, both in public and in private life. But the universal and extreme indignation which it inspires is itself a proof of the energy and prevalence of the contrary sentiment.

In the third place, those ties which bind the representative to his constituents are strengthened by motives of a more selfish nature. His pride and vanity attach him to a form of government which favors his pretensions and gives him a share in its honors and distinctions. Whatever hopes or projects might be entertained by a few aspiring characters, it must generally happen that a great proportion of the men deriving their advancement from their influence with the people, would have more to hope from a preservation of the favor, than from innovations in the government subversive of the authority of the people. All these securities, however, would be found very insufficient without the restraint of frequent elections. Hence, in the fourth place, the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it. I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America, a spirit which nourishes freedom, and in return is nourished by it. If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty. Such will be the relation between the House of Representatives and their constituents. Duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people.

It is possible that these may all be insufficient to control the caprice and wickedness of man. But are they not all that government will admit, and that human prudence can devise? Are they not the genuine and the characteristic means by which republican government provides for the liberty and happiness of the people? Are they not the identical means on which every State government in the Union relies for the attainment of these important ends? What then are we to understand by the objection which this paper has combated? What are we to say to the men who profess the most flaming zeal for republican government, yet boldly impeach the fundamental principle of it; who pretend to be champions for the right and the capacity of the people to choose their own rulers, yet maintain that they will prefer those only who will immediately and infallibly betray the trust committed to them? Were the objection to be read by one who had not seen the mode prescribed by the Constitution for the choice of representatives, he could suppose nothing less than that some unreasonable qualification of property was annexed to the right of suffrage; or that the right of eligibility was limited to persons of particular families or fortunes; or at least that the mode prescribed by the State constitutions was in some respect or other, very grossly departed from. We have seen how far such a supposition would err, as to the two first points. Nor would it, in fact, be less erroneous as to the last. The only difference discoverable between the two cases is, that each representative of the United States will be elected by five or six thousand citizens; whilst in the individual States, the election of a representative is left to about as many hundreds. Will it be pretended that this difference is sufficient to justify an attachment to the State governments, and an abhorrence to the federal government? If this be the point on which the objection turns, it deserves to be examined. Is it supported by REASON?

This cannot be said, without maintaining that five or six thousand citizens are less capable of choosing a fit representative, or more liable to be corrupted by an unfit one, than five or six hundred. Reason, on the contrary, assures us, that as in so great a number a fit representative would be most likely to be found, so the choice would be less likely to be diverted from him by the intrigues of the ambitious or the ambitious or the bribes of the rich. Is the CONSEQUENCE from this doctrine admissible? If we say that five or six hundred citizens are as many as can jointly exercise their right of suffrage, must we not deprive the people of the immediate choice of their public servants, in every instance where the administration of the government does not require as many of them as will amount to one for that number of citizens? Is the doctrine warranted by FACTS? It was shown in the last paper, that the real representation in the British House of Commons very little exceeds the proportion of one for every thirty thousand inhabitants. Besides a variety of powerful causes not existing here, and which favor in that country the pretensions of rank and wealth, no person is eligible as a representative of a county, unless he possess real estate of the clear value of six hundred pounds sterling per year; nor of a city or borough, unless he possess a like estate of half that annual value. To this qualification on the part of the county representatives is added another on the part of the county electors, which restrains the right of suffrage to persons having a freehold estate of the annual value of more than twenty pounds sterling, according to the present rate of money. Notwithstanding these unfavorable circumstances, and notwithstanding some very unequal laws in the British code, it cannot be said that the representatives of the nation have elevated the few on the ruins of the many. But we need not resort to foreign experience on this subject. Our own is explicit and decisive. The districts in New Hampshire in which the senators are chosen immediately by the people, are nearly as large as will be necessary for her representatives in the Congress. Those of Massachusetts are larger than will be necessary for that purpose; and those of New York still more so.

In the last State the members of Assembly for the cities and counties of New York and Albany are elected by very nearly as many voters as will be entitled to a representative in the Congress, calculating on the number of sixty-five representatives only. It makes no difference that in these senatorial districts and counties a number of representatives are voted for by each elector at the same time. If the same electors at the same time are capable of choosing four or five representatives, they cannot be incapable of choosing one. Pennsylvania is an additional example. Some of her counties, which elect her State representatives, are almost as large as her districts will be by which her federal representatives will be elected. The city of Philadelphia is supposed to contain between fifty and sixty thousand souls. It will therefore form nearly two districts for the choice of federal representatives. It forms, however, but one county, in which every elector votes for each of its representatives in the State legislature. And what may appear to be still more directly to our purpose, the whole city actually elects a SINGLE MEMBER for the executive council. This is the case in all the other counties of the State. Are not these facts the most satisfactory proofs of the fallacy which has been employed against the branch of the federal government under consideration? Has it appeared on trial that the senators of New Hampshire, Massachusetts, and New York, or the executive council of Pennsylvania, or the members of the Assembly in the two last States, have betrayed any peculiar disposition to sacrifice the many to the few, or are in any respect less worthy of their places than the representatives and magistrates appointed in other States by very small divisions of the people? But there are cases of a stronger complexion than any which I have yet quoted.

One branch of the legislature of Connecticut is so constituted that each member of it is elected by the whole State. So is the governor of that State, of Massachusetts, and of this State, and the president of New Hampshire. I leave every man to decide whether the result of any one of these experiments can be said to countenance a suspicion, that a diffusive mode of choosing representatives of the people tends to elevate traitors and to undermine the public liberty.

PUBLIUS.

Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands Considered

Author: James Madison

To the People of the State of New York:

THE remaining charge against the House of Representatives, which I am to examine, is grounded on a supposition that the number of members will not be augmented from time to time, as the progress of population may demand. It has been admitted, that this objection, if well supported, would have great weight. The following observations will show that, like most other objections against the Constitution, it can only proceed from a partial view of the subject, or from a jealousy which discolors and disfigures every object which is beheld. 1. Those who urge the objection seem not to have recollected that the federal Constitution will not suffer by a comparison with the State constitutions, in the security provided for a gradual augmentation of the number of representatives. The number which is to prevail in the first instance is declared to be temporary. Its duration is limited to the short term of three years. Within every successive term of ten years a census of inhabitants is to be repeated. The unequivocal objects of these regulations are, first, to readjust, from time to time, the apportionment of representatives to the number of inhabitants, under the single exception that each State shall have one representative at least; secondly, to augment the number of representatives at the same periods, under the sole limitation that the whole number shall not exceed one for every thirty thousand inhabitants. If we review the constitutions of the several States, we shall find that some of them contain no determinate regulations on this subject, that others correspond pretty much on this point with the federal Constitution, and that the most effectual security in any of them is resolvable into a mere directory provision. 2. As far as experience has taken place on this subject, a gradual increase of representatives under the State constitutions has at least kept pace with that of the constituents, and it appears that the former have been as ready to concur in such measures as the latter have been to call for them. 3. There is a peculiarity in the federal Constitution which insures a watchful attention in a majority both of the people and of their representatives to a constitutional augmentation of the latter. The peculiarity lies in this, that one branch of the legislature is a representation of citizens, the other of the States: in the former, consequently, the larger States will have most weight; in the latter, the advantage will be in favor of the smaller States. From this circumstance it may with certainty be inferred that the larger States will be strenuous advocates for increasing the number and weight of that part of the legislature in which their influence predominates. And it so happens that four only of the largest will have a majority of the whole votes in the House of Representatives. Should the representatives or people, therefore, of the smaller States oppose at any time a reasonable addition of members, a coalition of a very few States will be sufficient to overrule the opposition; a coalition which, notwithstanding the rivalship and local prejudices which might prevent it on ordinary occasions, would not fail to take place, when not merely prompted by common interest, but justified by equity and the principles of the Constitution. It may be alleged, perhaps, that the Senate would be prompted by like motives to an adverse coalition; and as their concurrence would be indispensable, the just and constitutional views of the other branch might be defeated. This is the difficulty which has probably created the most serious apprehensions in the jealous friends of a numerous representation. Fortunately it is among the difficulties which, existing only in appearance, vanish on a close and accurate inspection. The following reflections will, if I mistake not, be admitted to be conclusive and satisfactory on this point. Notwithstanding the equal authority which will subsist between the two houses on all legislative subjects, except the originating of money bills, it cannot be doubted that the House, composed of the greater number of members, when supported by the more powerful States, and speaking the known and determined sense of a majority of the people, will have no small advantage in a question depending on the comparative firmness of the two houses. This advantage must be increased by the consciousness, felt by the same side of being supported in its demands by right, by reason, and by the Constitution; and the consciousness, on the opposite side, of contending against the force of all these solemn considerations. It is farther to be considered, that in the gradation between the smallest and largest States, there are several, which, though most likely in general to arrange themselves among the former are too little removed in extent and population from the latter, to second an opposition to their just and legitimate pretensions. Hence it is by no means certain that a majority of votes, even in the Senate, would be unfriendly to proper augmentations in the number of representatives. It will not be looking too far to add, that the senators from all the new States may be gained over to the just views of the House of Representatives, by an expedient too obvious to be overlooked. As these States will, for a great length of time, advance in population with peculiar rapidity, they will be interested in frequent reapportionments of the representatives to the number of inhabitants. The large States, therefore, who will prevail in the House of Representatives, will have nothing to do but to make reapportionments and augmentations mutually conditions of each other; and the senators from all the most growing States will be bound to contend for the latter, by the interest which their States will feel in the former. These considerations seem to afford ample security on this subject, and ought alone to satisfy all the doubts and fears which have been indulged with regard to it. Admitting, however, that they should all be insufficient to subdue the unjust policy of the smaller States, or their predominant influence in the councils of the Senate, a constitutional and infallible resource still remains with the larger States, by which they will be able at all times to accomplish their just purposes. The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure. But will not the House of Representatives be as much interested as the Senate in maintaining the government in its proper functions, and will they not therefore be unwilling to stake its existence or its reputation on the pliancy of the Senate? Or, if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? These questions will create no difficulty with those who reflect that in all cases the smaller the number, and the more permanent and conspicuous the station, of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government. Those who represent the dignity of their country in the eyes of other nations, will be particularly sensible to every prospect of public danger, or of dishonorable stagnation in public affairs. To those causes we are to ascribe the continual triumph of the British House of Commons over the other branches of the government, whenever the engine of a money bill has been employed. An absolute inflexibility on the side of the latter, although it could not have failed to involve every department of the state in the general confusion, has neither been apprehended nor experienced. The utmost degree of firmness that can be displayed by the federal Senate or President, will not be more than equal to a resistance in which they will be supported by constitutional and patriotic principles. In this review of the Constitution of the House of Representatives, I have passed over the circumstances of economy, which, in the present state of affairs, might have had some effect in lessening the temporary number of representatives, and a disregard of which would probably have been as rich a theme of declamation against the Constitution as has been shown by the smallness of the number proposed. I omit also any remarks on the difficulty which might be found, under present circumstances, in engaging in the federal service a large number of such characters as the people will probably elect. One observation, however, I must be permitted to add on this subject as claiming, in my judgment, a very serious attention. It is, that in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason. In the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities. Now, it is precisely on characters of this description that the eloquence and address of the few are known to act with all their force. In the ancient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway as if a sceptre had been placed in his single hand. On the same principle, the more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people.

Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation. The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will forever admonish them that, on the contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic. The machine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed. As connected with the objection against the number of representatives, may properly be here noticed, that which has been suggested against the number made competent for legislative business. It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences. Lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in States where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.

PUBLIUS.

Concerning the Power of Congress to Regulate the Election of Members
From the New York Packet.
Friday, February 22, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

THE natural order of the subject leads us to consider, in this place, that provision of the Constitution which authorizes the national legislature to regulate, in the last resort, the election of its own members. It is in these words: “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 choosing senators.”[1] This provision has not only been declaimed against by those who condemn the Constitution in the gross, but it has been censured by those who have objected with less latitude and greater moderation; and, in one instance it has been thought exceptionable by a gentleman who has declared himself the advocate of every other part of the system. I am greatly mistaken, notwithstanding, if there be any article in the whole plan more completely defensible than this. Its propriety rests upon the evidence of this plain proposition, that EVERY GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION. Every just reasoner will, at first sight, approve an adherence to this rule, in the work of the convention; and will disapprove every deviation from it which may not appear to have been dictated by the necessity of incorporating into the work some particular ingredient, with which a rigid conformity to the rule was incompatible. Even in this case, though he may acquiesce in the necessity, yet he will not cease to regard and to regret a departure from so fundamental a principle, as a portion of imperfection in the system which may prove the seed of future weakness, and perhaps anarchy. It will not be alleged, that an election law could have been framed and inserted in the Constitution, which would have been always applicable to every probable change in the situation of the country; and it will therefore not be denied, that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded, that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former. The last mode has, with reason, been preferred by the convention. They have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety. Nothing can be more evident, than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it, by neglecting to provide for the choice of persons to administer its affairs. It is to little purpose to say, that a neglect or omission of this kind would not be likely to take place. The constitutional possibility of the thing, without an equivalent for the risk, is an unanswerable objection. Nor has any satisfactory reason been yet assigned for incurring that risk. The extravagant surmises of a distempered jealousy can never be dignified with that character. If we are in a humor to presume abuses of power, it is as fair to presume them on the part of the State governments as on the part of the general government. And as it is more consonant to the rules of a just theory, to trust the Union with the care of its own existence, than to transfer that care to any other hands, if abuses of power are to be hazarded on the one side or on the other, it is more rational to hazard them where the power would naturally be placed, than where it would unnaturally be placed. Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments? The violation of principle, in this case, would have required no comment; and, to an unbiased observer, it will not be less apparent in the project of subjecting the existence of the national government, in a similar respect, to the pleasure of the State governments. An impartial view of the matter cannot fail to result in a conviction, that each, as far as possible, ought to depend on itself for its own preservation. As an objection to this position, it may be remarked that the constitution of the national Senate would involve, in its full extent, the danger which it is suggested might flow from an exclusive power in the State legislatures to regulate the federal elections. It may be alleged, that by declining the appointment of Senators, they might at any time give a fatal blow to the Union; and from this it may be inferred, that as its existence would be thus rendered dependent upon them in so essential a point, there can be no objection to intrusting them with it in the particular case under consideration. The interest of each State, it may be added, to maintain its representation in the national councils, would be a complete security against an abuse of the trust. This argument, though specious, will not, upon examination, be found solid. It is certainly true that the State legislatures, by forbearing the appointment of senators, may destroy the national government. But it will not follow that, because they have a power to do this in one instance, they ought to have it in every other. There are cases in which the pernicious tendency of such a power may be far more decisive, without any motive equally cogent with that which must have regulated the conduct of the convention in respect to the formation of the Senate, to recommend their admission into the system. So far as that construction may expose the Union to the possibility of injury from the State legislatures, it is an evil; but it is an evil which could not have been avoided without excluding the States, in their political capacities, wholly from a place in the organization of the national government. If this had been done, it would doubtless have been interpreted into an entire dereliction of the federal principle; and would certainly have deprived the State governments of that absolute safeguard which they will enjoy under this provision. But however wise it may have been to have submitted in this instance to an inconvenience, for the attainment of a necessary advantage or a greater good, no inference can be drawn from thence to favor an accumulation of the evil, where no necessity urges, nor any greater good invites. It may be easily discerned also that the national government would run a much greater risk from a power in the State legislatures over the elections of its House of Representatives, than from their power of appointing the members of its Senate. The senators are to be chosen for the period of six years; there is to be a rotation, by which the seats of a third part of them are to be vacated and replenished every two years; and no State is to be entitled to more than two senators; a quorum of the body is to consist of sixteen members. The joint result of these circumstances would be, that a temporary combination of a few States to intermit the appointment of senators, could neither annul the existence nor impair the activity of the body; and it is not from a general and permanent combination of the States that we can have any thing to fear. The first might proceed from sinister designs in the leading members of a few of the State legislatures; the last would suppose a fixed and rooted disaffection in the great body of the people, which will either never exist at all, or will, in all probability, proceed from an experience of the inaptitude of the general government to the advancement of their happiness in which event no good citizen could desire its continuance. But with regard to the federal House of Representatives, there is intended to be a general election of members once in two years. If the State legislatures were to be invested with an exclusive power of regulating these elections, every period of making them would be a delicate crisis in the national situation, which might issue in a dissolution of the Union, if the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election. I shall not deny, that there is a degree of weight in the observation, that the interests of each State, to be represented in the federal councils, will be a security against the abuse of a power over its elections in the hands of the State legislatures. But the security will not be considered as complete, by those who attend to the force of an obvious distinction between the interest of the people in the public felicity, and the interest of their local rulers in the power and consequence of their offices. The people of America may be warmly attached to the government of the Union, at times when the particular rulers of particular States, stimulated by the natural rivalship of power, and by the hopes of personal aggrandizement, and supported by a strong faction in each of those States, may be in a very opposite temper. This diversity of sentiment between a majority of the people, and the individuals who have the greatest credit in their councils, is exemplified in some of the States at the present moment, on the present question. The scheme of separate confederacies, which will always multiply the chances of ambition, will be a never failing bait to all such influential characters in the State administrations as are capable of preferring their own emolument and advancement to the public weal. With so effectual a weapon in their hands as the exclusive power of regulating elections for the national government, a combination of a few such men, in a few of the most considerable States, where the temptation will always be the strongest, might accomplish the destruction of the Union, by seizing the opportunity of some casual dissatisfaction among the people (and which perhaps they may themselves have excited), to discontinue the choice of members for the federal House of Representatives. It ought never to be forgotten, that a firm union of this country, under an efficient government, will probably be an increasing object of jealousy to more than one nation of Europe; and that enterprises to subvert it will sometimes originate in the intrigues of foreign powers, and will seldom fail to be patronized and abetted by some of them. Its preservation, therefore ought in no case that can be avoided, to be committed to the guardianship of any but those whose situation will uniformly beget an immediate interest in the faithful and vigilant performance of the trust.

PUBLIUS.

1. 1st clause, 4th section, of the List article.

The Same Subject Continued: Concerning the Power of Congress to Regulate the Election of Members
From the New York Packet.
Tuesday, February 26, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

WE HAVE seen, that an uncontrollable power over the elections to the federal government could not, without hazard, be committed to the State legislatures. Let us now see, what would be the danger on the other side; that is, from confiding the ultimate right of regulating its own elections to the Union itself. It is not pretended, that this right would ever be used for the exclusion of any State from its share in the representation. The interest of all would, in this respect at least, be the security of all. But it is alleged, that it might be employed in such a manner as to promote the election of some favorite class of men in exclusion of others, by confining the places of election to particular districts, and rendering it impracticable to the citizens at large to partake in the choice. Of all chimerical suppositions, this seems to be the most chimerical. On the one hand, no rational calculation of probabilities would lead us to imagine that the disposition which a conduct so violent and extraordinary would imply, could ever find its way into the national councils; and on the other, it may be concluded with certainty, that if so improper a spirit should ever gain admittance into them, it would display itself in a form altogether different and far more decisive.

The improbability of the attempt may be satisfactorily inferred from this single reflection, that it could never be made without causing an immediate revolt of the great body of the people, headed and directed by the State governments. It is not difficult to conceive that this characteristic right of freedom may, in certain turbulent and factious seasons, be violated, in respect to a particular class of citizens, by a victorious and overbearing majority; but that so fundamental a privilege, in a country so situated and enlightened, should be invaded to the prejudice of the great mass of the people, by the deliberate policy of the government, without occasioning a popular revolution, is altogether inconceivable and incredible.

In addition to this general reflection, there are considerations of a more precise nature, which forbid all apprehension on the subject. The dissimilarity in the ingredients which will compose the national government, and in still more in the manner in which they will be brought into action in its various branches, must form a powerful obstacle to a concert of views in any partial scheme of elections. There is sufficient diversity in the state of property, in the genius, manners, and habits of the people of the different parts of the Union, to occasion a material diversity of disposition in their representatives towards the different ranks and conditions in society. And though an intimate intercourse under the same government will promote a gradual assimilation in some of these respects, yet there are causes, as well physical as moral, which may, in a greater or less degree, permanently nourish different propensities and inclinations in this respect. But the circumstance which will be likely to have the greatest influence in the matter, will be the dissimilar modes of constituting the several component parts of the government. The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.

As to the Senate, it is impossible that any regulation of “time and manner,” which is all that is proposed to be submitted to the national government in respect to that body, can affect the spirit which will direct the choice of its members. The collective sense of the State legislatures can never be influenced by extraneous circumstances of that sort; a consideration which alone ought to satisfy us that the discrimination apprehended would never be attempted. For what inducement could the Senate have to concur in a preference in which itself would not be included? Or to what purpose would it be established, in reference to one branch of the legislature, if it could not be extended to the other? The composition of the one would in this case counteract that of the other. And we can never suppose that it would embrace the appointments to the Senate, unless we can at the same time suppose the voluntary co-operation of the State legislatures. If we make the latter supposition, it then becomes immaterial where the power in question is placed whether in their hands or in those of the Union.

But what is to be the object of this capricious partiality in the national councils? Is it to be exercised in a discrimination between the different departments of industry, or between the different kinds of property, or between the different degrees of property? Will it lean in favor of the landed interest, or the moneyed interest, or the mercantile interest, or the manufacturing interest? Or, to speak in the fashionable language of the adversaries to the Constitution, will it court the elevation of “the wealthy and the well-born,” to the exclusion and debasement of all the rest of the society?

If this partiality is to be exerted in favor of those who are concerned in any particular description of industry or property, I presume it will readily be admitted, that the competition for it will lie between landed men and merchants. And I scruple not to affirm, that it is infinitely less likely that either of them should gain an ascendant in the national councils, than that the one or the other of them should predominate in all the local councils. The inference will be, that a conduct tending to give an undue preference to either is much less to be dreaded from the former than from the latter.

The several States are in various degrees addicted to agriculture and commerce. In most, if not all of them, agriculture is predominant. In a few of them, however, commerce nearly divides its empire, and in most of them has a considerable share of influence. In proportion as either prevails, it will be conveyed into the national representation; and for the very reason, that this will be an emanation from a greater variety of interests, and in much more various proportions, than are to be found in any single State, it will be much less apt to espouse either of them with a decided partiality, than the representation of any single State.

In a country consisting chiefly of the cultivators of land, where the rules of an equal representation obtain, the landed interest must, upon the whole, preponderate in the government. As long as this interest prevails in most of the State legislatures, so long it must maintain a correspondent superiority in the national Senate, which will generally be a faithful copy of the majorities of those assemblies. It cannot therefore be presumed, that a sacrifice of the landed to the mercantile class will ever be a favorite object of this branch of the federal legislature. In applying thus particularly to the Senate a general observation suggested by the situation of the country, I am governed by the consideration, that the credulous votaries of State power cannot, upon their own principles, suspect, that the State legislatures would be warped from their duty by any external influence. But in reality the same situation must have the same effect, in the primitive composition at least of the federal House of Representatives: an improper bias towards the mercantile class is as little to be expected from this quarter as from the other.

In order, perhaps, to give countenance to the objection at any rate, it may be asked, is there not danger of an opposite bias in the national government, which may dispose it to endeavor to secure a monopoly of the federal administration to the landed class? As there is little likelihood that the supposition of such a bias will have any terrors for those who would be immediately injured by it, a labored answer to this question will be dispensed with. It will be sufficient to remark, first, that for the reasons elsewhere assigned, it is less likely that any decided partiality should prevail in the councils of the Union than in those of any of its members. Secondly, that there would be no temptation to violate the Constitution in favor of the landed class, because that class would, in the natural course of things, enjoy as great a preponderancy as itself could desire. And thirdly, that men accustomed to investigate the sources of public prosperity upon a large scale, must be too well convinced of the utility of commerce, to be inclined to inflict upon it so deep a wound as would result from the entire exclusion of those who would best understand its interest from a share in the management of them. The importance of commerce, in the view of revenue alone, must effectually guard it against the enmity of a body which would be continually importuned in its favor, by the urgent calls of public necessity.

I the rather consult brevity in discussing the probability of a preference founded upon a discrimination between the different kinds of industry and property, because, as far as I understand the meaning of the objectors, they contemplate a discrimination of another kind. They appear to have in view, as the objects of the preference with which they endeavor to alarm us, those whom they designate by the description of “the wealthy and the well-born.” These, it seems, are to be exalted to an odious pre-eminence over the rest of their fellow-citizens. At one time, however, their elevation is to be a necessary consequence of the smallness of the representative body; at another time it is to be effected by depriving the people at large of the opportunity of exercising their right of suffrage in the choice of that body.

But upon what principle is the discrimination of the places of election to be made, in order to answer the purpose of the meditated preference? Are “the wealthy and the well-born,” as they are called, confined to particular spots in the several States? Have they, by some miraculous instinct or foresight, set apart in each of them a common place of residence? Are they only to be met with in the towns or cities? Or are they, on the contrary, scattered over the face of the country as avarice or chance may have happened to cast their own lot or that of their predecessors? If the latter is the case, (as every intelligent man knows it to be, [1] ) is it not evident that the policy of confining the places of election to particular districts would be as subversive of its own aim as it would be exceptionable on every other account? The truth is, that there is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.

Let it, however, be admitted, for argument sake, that the expedient suggested might be successful; and let it at the same time be equally taken for granted that all the scruples which a sense of duty or an apprehension of the danger of the experiment might inspire, were overcome in the breasts of the national rulers, still I imagine it will hardly be pretended that they could ever hope to carry such an enterprise into execution without the aid of a military force sufficient to subdue the resistance of the great body of the people. The improbability of the existence of a force equal to that object has been discussed and demonstrated in different parts of these papers; but that the futility of the objection under consideration may appear in the strongest light, it shall be conceded for a moment that such a force might exist, and the national government shall be supposed to be in the actual possession of it. What will be the conclusion? With a disposition to invade the essential rights of the community, and with the means of gratifying that disposition, is it presumable that the persons who were actuated by it would amuse themselves in the ridiculous task of fabricating election laws for securing a preference to a favorite class of men? Would they not be likely to prefer a conduct better adapted to their own immediate aggrandizement? Would they not rather boldly resolve to perpetuate themselves in office by one decisive act of usurpation, than to trust to precarious expedients which, in spite of all the precautions that might accompany them, might terminate in the dismission, disgrace, and ruin of their authors? Would they not fear that citizens, not less tenacious than conscious of their rights, would flock from the remote extremes of their respective States to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people?

PUBLIUS.

1. Particularly in the Southern States and in this State.

The Same Subject Continued: Concerning the Power of Congress to Regulate the Election of Members
From the New York Packet.
Tuesday, February 26, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

THE more candid opposers of the provision respecting elections, contained in the plan of the convention, when pressed in argument, will sometimes concede the propriety of that provision; with this qualification, however, that it ought to have been accompanied with a declaration, that all elections should be had in the counties where the electors resided. This, say they, was a necessary precaution against an abuse of the power. A declaration of this nature would certainly have been harmless; so far as it would have had the effect of quieting apprehensions, it might not have been undesirable. But it would, in fact, have afforded little or no additional security against the danger apprehended; and the want of it will never be considered, by an impartial and judicious examiner, as a serious, still less as an insuperable, objection to the plan. The different views taken of the subject in the two preceding papers must be sufficient to satisfy all dispassionate and discerning men, that if the public liberty should ever be the victim of the ambition of the national rulers, the power under examination, at least, will be guiltless of the sacrifice.

If those who are inclined to consult their jealousy only, would exercise it in a careful inspection of the several State constitutions, they would find little less room for disquietude and alarm, from the latitude which most of them allow in respect to elections, than from the latitude which is proposed to be allowed to the national government in the same respect. A review of their situation, in this particular, would tend greatly to remove any ill impressions which may remain in regard to this matter. But as that view would lead into long and tedious details, I shall content myself with the single example of the State in which I write. The constitution of New York makes no other provision for LOCALITY of elections, than that the members of the Assembly shall be elected in the COUNTIES; those of the Senate, in the great districts into which the State is or may be divided: these at present are four in number, and comprehend each from two to six counties. It may readily be perceived that it would not be more difficult to the legislature of New York to defeat the suffrages of the citizens of New York, by confining elections to particular places, than for the legislature of the United States to defeat the suffrages of the citizens of the Union, by the like expedient. Suppose, for instance, the city of Albany was to be appointed the sole place of election for the county and district of which it is a part, would not the inhabitants of that city speedily become the only electors of the members both of the Senate and Assembly for that county and district? Can we imagine that the electors who reside in the remote subdivisions of the counties of Albany, Saratoga, Cambridge, etc., or in any part of the county of Montgomery, would take the trouble to come to the city of Albany, to give their votes for members of the Assembly or Senate, sooner than they would repair to the city of New York, to participate in the choice of the members of the federal House of Representatives? The alarming indifference discoverable in the exercise of so invaluable a privilege under the existing laws, which afford every facility to it, furnishes a ready answer to this question. And, abstracted from any experience on the subject, we can be at no loss to determine, that when the place of election is at an INCONVENIENT DISTANCE from the elector, the effect upon his conduct will be the same whether that distance be twenty miles or twenty thousand miles. Hence it must appear, that objections to the particular modification of the federal power of regulating elections will, in substance, apply with equal force to the modification of the like power in the constitution of this State; and for this reason it will be impossible to acquit the one, and to condemn the other. A similar comparison would lead to the same conclusion in respect to the constitutions of most of the other States.

If it should be said that defects in the State constitutions furnish no apology for those which are to be found in the plan proposed, I answer, that as the former have never been thought chargeable with inattention to the security of liberty, where the imputations thrown on the latter can be shown to be applicable to them also, the presumption is that they are rather the cavilling refinements of a predetermined opposition, than the well-founded inferences of a candid research after truth. To those who are disposed to consider, as innocent omissions in the State constitutions, what they regard as unpardonable blemishes in the plan of the convention, nothing can be said; or at most, they can only be asked to assign some substantial reason why the representatives of the people in a single State should be more impregnable to the lust of power, or other sinister motives, than the representatives of the people of the United States? If they cannot do this, they ought at least to prove to us that it is easier to subvert the liberties of three millions of people, with the advantage of local governments to head their opposition, than of two hundred thousand people who are destitute of that advantage. And in relation to the point immediately under consideration, they ought to convince us that it is less probable that a predominant faction in a single State should, in order to maintain its superiority, incline to a preference of a particular class of electors, than that a similar spirit should take possession of the representatives of thirteen States, spread over a vast region, and in several respects distinguishable from each other by a diversity of local circumstances, prejudices, and interests.

Hitherto my observations have only aimed at a vindication of the provision in question, on the ground of theoretic propriety, on that of the danger of placing the power elsewhere, and on that of the safety of placing it in the manner proposed. But there remains to be mentioned a positive advantage which will result from this disposition, and which could not as well have been obtained from any other: I allude to the circumstance of uniformity in the time of elections for the federal House of Representatives. It is more than possible that this uniformity may be found by experience to be of great importance to the public welfare, both as a security against the perpetuation of the same spirit in the body, and as a cure for the diseases of faction. If each State may choose its own time of election, it is possible there may be at least as many different periods as there are months in the year. The times of election in the several States, as they are now established for local purposes, vary between extremes as wide as March and November. The consequence of this diversity would be that there could never happen a total dissolution or renovation of the body at one time. If an improper spirit of any kind should happen to prevail in it, that spirit would be apt to infuse itself into the new members, as they come forward in succession. The mass would be likely to remain nearly the same, assimilating constantly to itself its gradual accretions. There is a contagion in example which few men have sufficient force of mind to resist. I am inclined to think that treble the duration in office, with the condition of a total dissolution of the body at the same time, might be less formidable to liberty than one third of that duration subject to gradual and successive alterations.

Uniformity in the time of elections seems not less requisite for executing the idea of a regular rotation in the Senate, and for conveniently assembling the legislature at a stated period in each year.

It may be asked, Why, then, could not a time have been fixed in the Constitution? As the most zealous adversaries of the plan of the convention in this State are, in general, not less zealous admirers of the constitution of the State, the question may be retorted, and it may be asked, Why was not a time for the like purpose fixed in the constitution of this State? No better answer can be given than that it was a matter which might safely be entrusted to legislative discretion; and that if a time had been appointed, it might, upon experiment, have been found less convenient than some other time. The same answer may be given to the question put on the other side. And it may be added that the supposed danger of a gradual change being merely speculative, it would have been hardly advisable upon that speculation to establish, as a fundamental point, what would deprive several States of the convenience of having the elections for their own governments and for the national government at the same epochs.

PUBLIUS.

The Senate
For the Independent Journal.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

HAVING examined the constitution of the House of Representatives, and answered such of the objections against it as seemed to merit notice, I enter next on the examination of the Senate.

The heads into which this member of the government may be considered are: I. The qualification of senators; II. The appointment of them by the State legislatures; III. The equality of representation in the Senate; IV. The number of senators, and the term for which they are to be elected; V. The powers vested in the Senate.

I. The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. A senator must be thirty years of age at least; as a representative must be twenty-five. And the former must have been a citizen nine years; as seven years are required for the latter. The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils.

II. It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.

III. The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a PROPORTIONAL share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an EQUAL share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. But it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be the result, not of theory, but “of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.” A common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of America. A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice.

In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.

Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller States, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.

IV. The number of senators, and the duration of their appointment, come next to be considered. In order to form an accurate judgment on both of these points, it will be proper to inquire into the purposes which are to be answered by a senate; and in order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution.

First. It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. I will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government.

Secondly. The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations. But a position that will not be contradicted, need not be proved. All that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration.

Thirdly. Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people, of the value of those aids which may be expected from a well-constituted senate?

A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities; most governments are deficient in the first. I scruple not to assert, that in American governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first.

Fourthly. The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions.

To trace the mischievous effects of a mutable government would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others.

In the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. One nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other. Every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors. But the best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs.

The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the FEW, not for the MANY.

In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.

But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.

PUBLIUS.

The Senate Continued
For the Independent Journal.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

A FIFTH desideratum, illustrating the utility of a senate, is the want of a due sense of national character. Without a select and stable member of the government, the esteem of foreign powers will not only be forfeited by an unenlightened and variable policy, proceeding from the causes already mentioned, but the national councils will not possess that sensibility to the opinion of the world, which is perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence.

An attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind?

Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body. It can only be found in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual; or in an assembly so durably invested with public trust, that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community. The half-yearly representatives of Rhode Island would probably have been little affected in their deliberations on the iniquitous measures of that State, by arguments drawn from the light in which such measures would be viewed by foreign nations, or even by the sister States; whilst it can scarcely be doubted that if the concurrence of a select and stable body had been necessary, a regard to national character alone would have prevented the calamities under which that misguided people is now laboring.

I add, as a SIXTH defect the want, in some important cases, of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility. This remark will, perhaps, appear not only new, but paradoxical. It must nevertheless be acknowledged, when explained, to be as undeniable as it is important.

Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country, needs no explanation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. Nor is it possible for the people to estimate the SHARE of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. It is sufficiently difficult to preserve a personal responsibility in the members of a NUMEROUS body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents.

The proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects.

Thus far I have considered the circumstances which point out the necessity of a well-constructed Senate only as they relate to the representatives of the people. To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

It may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance. I have, on the contrary, endeavored in a former paper to show, that it is one of the principal recommendations of a confederated republic. At the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions. It may even be remarked, that the same extended situation, which will exempt the people of America from some of the dangers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them.

It adds no small weight to all these considerations, to recollect that history informs us of no long-lived republic which had not a senate. Sparta, Rome, and Carthage are, in fact, the only states to whom that character can be applied. In each of the two first there was a senate for life. The constitution of the senate in the last is less known. Circumstantial evidence makes it probable that it was not different in this particular from the two others. It is at least certain, that it had some quality or other which rendered it an anchor against popular fluctuations; and that a smaller council, drawn out of the senate, was appointed not only for life, but filled up vacancies itself. These examples, though as unfit for the imitation, as they are repugnant to the genius, of America, are, notwithstanding, when compared with the fugitive and turbulent existence of other ancient republics, very instructive proofs of the necessity of some institution that will blend stability with liberty. I am not unaware of the circumstances which distinguish the American from other popular governments, as well ancient as modern; and which render extreme circumspection necessary, in reasoning from the one case to the other. But after allowing due weight to this consideration, it may still be maintained, that there are many points of similitude which render these examples not unworthy of our attention. Many of the defects, as we have seen, which can only be supplied by a senatorial institution, are common to a numerous assembly frequently elected by the people, and to the people themselves. There are others peculiar to the former, which require the control of such an institution. The people can never wilfully betray their own interests; but they may possibly be betrayed by the representatives of the people; and the danger will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar bodies is required in every public act.

The difference most relied on, between the American and other republics, consists in the principle of representation; which is the pivot on which the former move, and which is supposed to have been unknown to the latter, or at least to the ancient part of them. The use which has been made of this difference, in reasonings contained in former papers, will have shown that I am disposed neither to deny its existence nor to undervalue its importance. I feel the less restraint, therefore, in observing, that the position concerning the ignorance of the ancient governments on the subject of representation, is by no means precisely true in the latitude commonly given to it. Without entering into a disquisition which here would be misplaced, I will refer to a few known facts, in support of what I advance.

In the most pure democracies of Greece, many of the executive functions were performed, not by the people themselves, but by officers elected by the people, and REPRESENTING the people in their EXECUTIVE capacity.

Prior to the reform of Solon, Athens was governed by nine Archons, annually ELECTED BY THE PEOPLE AT LARGE. The degree of power delegated to them seems to be left in great obscurity. Subsequent to that period, we find an assembly, first of four, and afterwards of six hundred members, annually ELECTED BY THE PEOPLE; and PARTIALLY representing them in their LEGISLATIVE capacity, since they were not only associated with the people in the function of making laws, but had the exclusive right of originating legislative propositions to the people. The senate of Carthage, also, whatever might be its power, or the duration of its appointment, appears to have been ELECTIVE by the suffrages of the people. Similar instances might be traced in most, if not all the popular governments of antiquity.

Lastly, 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. The Cosmi of Crete were also annually ELECTED BY THE PEOPLE, and have been considered by some authors as an institution analogous to those of Sparta and Rome, with this difference only, that in the election of that representative body the right of suffrage was communicated to a part only of the people.

From these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. The true distinction between these and the American governments, lies IN THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE CAPACITY, from any share in the LATTER, and not in the TOTAL EXCLUSION OF THE REPRESENTATIVES OF THE PEOPLE from the administration of the FORMER. The distinction, however, thus qualified, must be admitted to leave a most advantageous superiority in favor of the United States. But to insure to this advantage its full effect, we must be careful not to separate it from the other advantage, of an extensive territory. For it cannot be believed, that any form of representative government could have succeeded within the narrow limits occupied by the democracies of Greece.

In answer to all these arguments, suggested by reason, illustrated by examples, and enforced by our own experience, the jealous adversary of the Constitution will probably content himself with repeating, that a senate appointed not immediately by the people, and for the term of six years, must gradually acquire a dangerous pre-eminence in the government, and finally transform it into a tyrannical aristocracy.

To this general answer, the general reply ought to be sufficient, that liberty may be endangered by the abuses of liberty as well as by the abuses of power; that there are numerous instances of the former as well as of the latter; and that the former, rather than the latter, are apparently most to be apprehended by the United States. But a more particular reply may be given.

Before such a revolution can be effected, the Senate, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large. It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny. Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order. Is there any man who can seriously persuade himself that the proposed Senate can, by any possible means within the compass of human address, arrive at the object of a lawless ambition, through all these obstructions?

If reason condemns the suspicion, the same sentence is pronounced by experience. The constitution of Maryland furnishes the most apposite example. The Senate of that State is elected, as the federal Senate will be, indirectly by the people, and for a term less by one year only than the federal Senate. It is distinguished, also, by the remarkable prerogative of filling up its own vacancies within the term of its appointment, and, at the same time, is not under the control of any such rotation as is provided for the federal Senate. There are some other lesser distinctions, which would expose the former to colorable objections, that do not lie against the latter. If the federal Senate, therefore, really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ought by this time to have been betrayed by the Senate of Maryland, but no such symptoms have appeared. On the contrary, the jealousies at first entertained by men of the same description with those who view with terror the correspondent part of the federal Constitution, have been gradually extinguished by the progress of the experiment; and the Maryland constitution is daily deriving, from the salutary operation of this part of it, a reputation in which it will probably not be rivalled by that of any State in the Union.

But if any thing could silence the jealousies on this subject, it ought to be the British example. The Senate there instead of being elected for a term of six years, and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles. The House of Representatives, instead of being elected for two years, and by the whole body of the people, is elected for seven years, and, in very great proportion, by a very small proportion of the people. Here, unquestionably, ought to be seen in full display the aristocratic usurpations and tyranny which are at some future period to be exemplified in the United States. Unfortunately, however, for the anti-federal argument, the British history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the House of Representatives; and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch.

As far as antiquity can instruct us on this subject, its examples support the reasoning which we have employed. In Sparta, the Ephori, the annual representatives of the people, were found an overmatch for the senate for life, continually gained on its authority and finally drew all power into their own hands. 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. The fact is the more remarkable, as unanimity was required in every act of the Tribunes, even after their number was augmented to ten. It proves the irresistible force possessed by that branch of a free government, which has the people on its side. To these examples might be added that of Carthage, whose senate, according to the testimony of Polybius, instead of drawing all power into its vortex, had, at the commencement of the second Punic War, lost almost the whole of its original portion.

Besides the conclusive evidence resulting from this assemblage of facts, that the federal Senate will never be able to transform itself, by gradual usurpations, into an independent and aristocratic body, we are warranted in believing, that if such a revolution should ever happen from causes which the foresight of man cannot guard against, the House of Representatives, with the people on their side, will at all times be able to bring back the Constitution to its primitive form and principles. Against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority of the Senate, but such a display of enlightened policy, and attachment to the public good, as will divide with that branch of the legislature the affections and support of the entire body of the people themselves.

PUBLIUS.

The Powers of the Senate
From the New York Packet.
Friday, March 7, 1788.

Author: John Jay

To the People of the State of New York:

IT IS a just and not a new observation, that enemies to particular persons, and opponents to particular measures, seldom confine their censures to such things only in either as are worthy of blame. Unless on this principle, it is difficult to explain the motives of their conduct, who condemn the proposed Constitution in the aggregate, and treat with severity some of the most unexceptionable articles in it.

The second section gives power to the President, “BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO THIRDS OF THE SENATORS PRESENT CONCUR.”

The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. The convention appears to have been attentive to both these points: they have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures. This mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors.

As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. The Constitution manifests very particular attention to this object. By excluding men under thirty-five from the first office, and those under thirty from the second, it confines the electors to men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle. If the observation be well founded, that wise kings will always be served by able ministers, it is fair to argue, that as an assembly of select electors possess, in a greater degree than kings, the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment. The inference which naturally results from these considerations is this, that the President and senators so chosen will always be of the number of those who best understand our national interests, whether considered in relation to the several States or to foreign nations, who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence. With such men the power of making treaties may be safely lodged.

Although the absolute necessity of system, in the conduct of any business, is universally known and acknowledged, yet the high importance of it in national affairs has not yet become sufficiently impressed on the public mind. They who wish to commit the power under consideration to a popular assembly, composed of members constantly coming and going in quick succession, seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects, which require to be steadily contemplated in all their relations and circumstances, and which can only be approached and achieved by measures which not only talents, but also exact information, and often much time, are necessary to concert and to execute. It was wise, therefore, in the convention to provide, not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them. The duration prescribed is such as will give them an opportunity of greatly extending their political information, and of rendering their accumulating experience more and more beneficial to their country. Nor has the convention discovered less prudence in providing for the frequent elections of senators in such a way as to obviate the inconvenience of periodically transferring those great affairs entirely to new men; for by leaving a considerable residue of the old ones in place, uniformity and order, as well as a constant succession of official information will be preserved.

There are a few who will not admit that the affairs of trade and navigation should be regulated by a system cautiously formed and steadily pursued; and that both our treaties and our laws should correspond with and be made to promote it. It is of much consequence that this correspondence and conformity be carefully maintained; and they who assent to the truth of this position will see and confess that it is well provided for by making concurrence of the Senate necessary both to treaties and to laws.

It seldom happens in the negotiation of treaties, of whatever nature, but that perfect SECRECY and immediate DESPATCH are sometimes requisite. These are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular Assembly. The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest.

They who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay, even when hours, are precious. The loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. For these, the President will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the Senate, he may at any time convene them. Thus we see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and despatch on the other.

But to this plan, as to most others that have ever appeared, objections are contrived and urged.

Some are displeased with it, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is, that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judicial. It surely does not follow, that because they have given the power of making laws to the legislature, that therefore they should likewise give them the power to do every other act of sovereignty by which the citizens are to be bound and affected.

Others, though content that treaties should be made in the mode proposed, are averse to their being the SUPREME laws of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them ABSOLUTELY, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. The proposed Constitution, therefore, has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government.

However useful jealousy may be in republics, yet when like bile in the natural, it abounds too much in the body politic, the eyes of both become very liable to be deceived by the delusive appearances which that malady casts on surrounding objects. From this cause, probably, proceed the fears and apprehensions of some, that the President and Senate may make treaties without an equal eye to the interests of all the States. Others suspect that two thirds will oppress the remaining third, and ask whether those gentlemen are made sufficiently responsible for their conduct; whether, if they act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties?

As all the States are equally represented in the Senate, and by men the most able and the most willing to promote the interests of their constituents, they will all have an equal degree of influence in that body, especially while they continue to be careful in appointing proper persons, and to insist on their punctual attendance. In proportion as the United States assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole. It will not be in the power of the President and Senate to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community; and, having no private interests distinct from that of the nation, they will be under no temptations to neglect the latter.

As to corruption, the case is not supposable. He must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained. But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations.

With respect to their responsibility, it is difficult to conceive how it could be increased. Every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity. In short, as the Constitution has taken the utmost care that they shall be men of talents and integrity, we have reason to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made; and so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on the subject of impeachments.

PUBLIUS.

The Powers of the Senate Continued
From the New York Packet.
Friday, March 7, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate.

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.

The convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.

What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?

Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?

Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.

These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt?

Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded.

Would it have been desirable to have composed the court for the trial of impeachments, of persons wholly distinct from the other departments of the government? There are weighty arguments, as well against, as in favor of, such a plan. To some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. But an objection which will not be thought by any unworthy of attention, is this: a court formed upon such a plan, would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. It must either consist of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the State governments to be called upon whenever an impeachment was actually depending. It will not be easy to imagine any third mode materially different, which could rationally be proposed. As the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them. The second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole Union; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the State, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives. Though this latter supposition may seem harsh, and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men.

But though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the Constitution ought for this reason to be rejected. If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. Where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his INFALLIBLE criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.

PUBLIUS.

Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered
From the New York Packet.
Tuesday, March 11, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

A REVIEW of the principal objections that have appeared against the proposed court for the trial of impeachments, will not improbably eradicate the remains of any unfavorable impressions which may still exist in regard to this matter.

The FIRST of these objections is, that the provision in question confounds legislative and judiciary authorities in the same body, in violation of that important and well established maxim which requires a separation between the different departments of power. The true meaning of this maxim has been discussed and ascertained in another place, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, preserving them, in the main, distinct and unconnected. This partial intermixture is even, in some cases, not only proper but necessary to the mutual defense of the several members of the government against each other. An absolute or qualified negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. And it may, perhaps, with no less reason be contended, that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the executive. The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire.

It is curious to observe, with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire, without exception, the constitution of this State; while that constitution makes the Senate, together with the chancellor and judges of the Supreme Court, not only a court of impeachments, but the highest judicatory in the State, in all causes, civil and criminal. The proportion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of New York, in the last resort, may, with truth, be said to reside in its Senate. If the plan of the convention be, in this respect, chargeable with a departure from the celebrated maxim which has been so often mentioned, and seems to be so little understood, how much more culpable must be the constitution of New York? [1]

A SECOND objection to the Senate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic. The Senate, it is observed, is to have concurrent authority with the Executive in the formation of treaties and in the appointment to offices: if, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy to senatorial influence. To an objection so little precise in itself, it is not easy to find a very precise answer. Where is the measure or criterion to which we can appeal, for determining what will give the Senate too much, too little, or barely the proper degree of influence? Will it not be more safe, as well as more simple, to dismiss such vague and uncertain calculations, to examine each power by itself, and to decide, on general principles, where it may be deposited with most advantage and least inconvenience?

If we take this course, it will lead to a more intelligible, if not to a more certain result. The disposition of the power of making treaties, which has obtained in the plan of the convention, will, then, if I mistake not, appear to be fully justified by the considerations stated in a former number, and by others which will occur under the next head of our inquiries. The expediency of the junction of the Senate with the Executive, in the power of appointing to offices, will, I trust, be placed in a light not less satisfactory, in the disquisitions under the same head. And I flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practicable, to find a more fit receptacle for the power of determining impeachments, than that which has been chosen. If this be truly the case, the hypothetical dread of the too great weight of the Senate ought to be discarded from our reasonings.

But this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. It was by them shown, as well on the credit of historical examples, as from the reason of the thing, that the most POPULAR branch of every government, partaking of the republican genius, by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the Government.

But independent of this most active and operative principle, to secure the equilibrium of the national House of Representatives, the plan of the convention has provided in its favor several important counterpoises to the additional authorities to be conferred upon the Senate. The exclusive privilege of originating money bills will belong to the House of Representatives. The same house will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them? The same house will be the umpire in all elections of the President, which do not unite the suffrages of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently, happen. The constant possibility of the thing must be a fruitful source of influence to that body. The more it is contemplated, the more important will appear this ultimate though contingent power, of deciding the competitions of the most illustrious citizens of the Union, for the first office in it. It would not perhaps be rash to predict, that as a mean of influence it will be found to outweigh all the peculiar attributes of the Senate.

A THIRD objection to the Senate as a court of impeachments, is drawn from the agency they are to have in the appointments to office. It is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated. The principle of this objection would condemn a practice, which is to be seen in all the State governments, if not in all the governments with which we are acquainted: I mean that of rendering those who hold offices during pleasure, dependent on the pleasure of those who appoint them. With equal plausibility might it be alleged in this case, that the favoritism of the latter would always be an asylum for the misbehavior of the former. But that practice, in contradiction to this principle, proceeds upon the presumption, that the responsibility of those who appoint, for the fitness and competency of the persons on whom they bestow their choice, and the interest they will have in the respectable and prosperous administration of affairs, will inspire a sufficient disposition to dismiss from a share in it all such who, by their conduct, shall have proved themselves unworthy of the confidence reposed in them. Though facts may not always correspond with this presumption, yet if it be, in the main, just, it must destroy the supposition that the Senate, who will merely sanction the choice of the Executive, should feel a bias, towards the objects of that choice, strong enough to blind them to the evidences of guilt so extraordinary, as to have induced the representatives of the nation to become its accusers.

If any further arguments were necessary to evince the improbability of such a bias, it might be found in the nature of the agency of the Senate in the business of appointments.

It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

A FOURTH objection to the Senate in the capacity of a court of impeachments, is derived from its union with the Executive in the power of making treaties. This, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. After having combined with the Executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their being made to suffer the punishment they would deserve, when they were themselves to decide upon the accusation brought against them for the treachery of which they have been guilty?

This objection has been circulated with more earnestness and with greater show of reason than any other which has appeared against this part of the plan; and yet I am deceived if it does not rest upon an erroneous foundation.

The security essentially intended by the Constitution against corruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. The JOINT AGENCY of the Chief Magistrate of the Union, and of two thirds of the members of a body selected by the collective wisdom of the legislatures of the several States, is designed to be the pledge for the fidelity of the national councils in this particular. The convention might with propriety have meditated the punishment of the Executive, for a deviation from the instructions of the Senate, or a want of integrity in the conduct of the negotiations committed to him; they might also have had in view the punishment of a few leading individuals in the Senate, who should have prostituted their influence in that body as the mercenary instruments of foreign corruption: but they could not, with more or with equal propriety, have contemplated the impeachment and punishment of two thirds of the Senate, consenting to an improper treaty, than of a majority of that or of the other branch of the national legislature, consenting to a pernicious or unconstitutional law, a principle which, I believe, has never been admitted into any government. How, in fact, could a majority in the House of Representatives impeach themselves? Not better, it is evident, than two thirds of the Senate might try themselves. And yet what reason is there, that a majority of the House of Representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation, should escape with impunity, more than two thirds of the Senate, sacrificing the same interests in an injurious treaty with a foreign power? The truth is, that in all such cases it is essential to the freedom and to the necessary independence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it their interest to execute it with fidelity, and to make it as difficult as possible for them to combine in any interest opposite to that of the public good.

So far as might concern the misbehavior of the Executive in perverting the instructions or contravening the views of the Senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence or to vindicate their own authority. We may thus far count upon their pride, if not upon their virtue. And so far even as might concern the corruption of leading members, by whose arts and influence the majority may have been inveigled into measures odious to the community, if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace.

PUBLIUS.

1. In that of New Jersey, also, the final judiciary authority is in a branch of the legislature. In New Hampshire, Massachusetts, Pennsylvania, and South Carolina, one branch of the legislature is the court for the trial of impeachments.

The Executive Department
From the New York Packet
Tuesday, March 11, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

THE constitution of the executive department of the proposed government, claims next our attention.

There is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than this; and there is, perhaps, none which has been inveighed against with less candor or criticised with less judgment.

Here the writers against the Constitution seem to have taken pains to signalize their talent of misrepresentation. Calculating upon the aversion of the people to monarchy, they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as the embryo, but as the full-grown progeny, of that detested parent. To establish the pretended affinity, they have not scrupled to draw resources even from the regions of fiction. The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York, have been magnified into more than royal prerogatives. He has been decorated with attributes superior in dignity and splendor to those of a king of Great Britain. He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio.

Attempts so extravagant as these to disfigure or, it might rather be said, to metamorphose the object, render it necessary to take an accurate view of its real nature and form: in order as well to ascertain its true aspect and genuine appearance, as to unmask the disingenuity and expose the fallacy of the counterfeit resemblances which have been so insidiously, as well as industriously, propagated.

In the execution of this task, there is no man who would not find it an arduous effort either to behold with moderation, or to treat with seriousness, the devices, not less weak than wicked, which have been contrived to pervert the public opinion in relation to the subject. They so far exceed the usual though unjustifiable licenses of party artifice, that even in a disposition the most candid and tolerant, they must force the sentiments which favor an indulgent construction of the conduct of political adversaries to give place to a voluntary and unreserved indignation. It is impossible not to bestow the imputation of deliberate imposture and deception upon the gross pretense of a similitude between a king of Great Britain and a magistrate of the character marked out for that of the President of the United States. It is still more impossible to withhold that imputation from the rash and barefaced expedients which have been employed to give success to the attempted imposition.

In one instance, which I cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the President of the United States a power which by the instrument reported is EXPRESSLY allotted to the Executives of the individual States. I mean the power of filling casual vacancies in the Senate.

This bold experiment upon the discernment of his countrymen has been hazarded by a writer who (whatever may be his real merit) has had no inconsiderable share in the applauses of his party [1] ; and who, upon this false and unfounded suggestion, has built a series of observations equally false and unfounded. Let him now be confronted with the evidence of the fact, and let him, if he be able, justify or extenuate the shameful outrage he has offered to the dictates of truth and to the rules of fair dealing.

The second clause of the second section of the second article empowers the President of the United States “to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other OFFICERS of United States whose appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW.” Immediately after this clause follows another in these words: “The President shall have power to fill up ?? VACANCIES that may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall EXPIRE AT THE END OF THEIR NEXT SESSION.” It is from this last provision that the pretended power of the President to fill vacancies in the Senate has been deduced. A slight attention to the connection of the clauses, and to the obvious meaning of the terms, will satisfy us that the deduction is not even colorable.

The first of these two clauses, it is clear, only provides a mode for appointing such officers, “whose appointments are NOT OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW”; of course it cannot extend to the appointments of senators, whose appointments are OTHERWISE PROVIDED FOR in the Constitution [2] , and who are ESTABLISHED BY THE CONSTITUTION, and will not require a future establishment by law. This position will hardly be contested.

The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate, for the following reasons: First. The relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate. The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” Secondly. If this clause is to be considered as supplementary to the one which precedes, the VACANCIES of which it speaks must be construed to relate to the “officers” described in the preceding one; and this, we have seen, excludes from its description the members of the Senate. Thirdly. The time within which the power is to operate, “during the recess of the Senate,” and the duration of the appointments, “to the end of the next session” of that body, conspire to elucidate the sense of the provision, which, if it had been intended to comprehend senators, would naturally have referred the temporary power of filling vacancies to the recess of the State legislatures, who are to make the permanent appointments, and not to the recess of the national Senate, who are to have no concern in those appointments; and would have extended the duration in office of the temporary senators to the next session of the legislature of the State, in whose representation the vacancies had happened, instead of making it to expire at the end of the ensuing session of the national Senate. The circumstances of the body authorized to make the permanent appointments would, of course, have governed the modification of a power which related to the temporary appointments; and as the national Senate is the body, whose situation is alone contemplated in the clause upon which the suggestion under examination has been founded, the vacancies to which it alludes can only be deemed to respect those officers in whose appointment that body has a concurrent agency with the President. But lastly, the first and second clauses of the third section of the first article, not only obviate all possibility of doubt, but destroy the pretext of misconception. The former provides, that “the Senate of the United States shall be composed of two Senators from each State, chosen BY THE LEGISLATURE THEREOF for six years”; and the latter directs, that, “if vacancies in that body should happen by resignation or otherwise, DURING THE RECESS OF THE LEGISLATURE OF ANY STATE, the Executive THEREOF may make temporary appointments until the NEXT MEETING OF THE LEGISLATURE, which shall then fill such vacancies.” Here is an express power given, in clear and unambiguous terms, to the State Executives, to fill casual vacancies in the Senate, by temporary appointments; which not only invalidates the supposition, that the clause before considered could have been intended to confer that power upon the President of the United States, but proves that this supposition, destitute as it is even of the merit of plausibility, must have originated in an intention to deceive the people, too palpable to be obscured by sophistry, too atrocious to be palliated by hypocrisy.

I have taken the pains to select this instance of misrepresentation, and to place it in a clear and strong light, as an unequivocal proof of the unwarrantable arts which are practiced to prevent a fair and impartial judgment of the real merits of the Constitution submitted to the consideration of the people. Nor have I scrupled, in so flagrant a case, to allow myself a severity of animadversion little congenial with the general spirit of these papers. I hesitate not to submit it to the decision of any candid and honest adversary of the proposed government, whether language can furnish epithets of too much asperity, for so shameless and so prostitute an attempt to impose on the citizens of America.

PUBLIUS.

1. See CATO, No. V.

2. Article I, section 3, clause I.

The Mode of Electing the President
From the New York Packet
Friday, March 14, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

THE mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded. [1] I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for.

It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.

Another and no less important desideratum was, that the Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice.

All these advantages will happily combine in the plan devised by the convention; which is, that the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government, who shall assemble within the State, and vote for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the President. But as a majority of the votes might not always happen to centre in one man, and as it might be unsafe to permit less than a majority to be conclusive, it is provided that, in such a contingency, the House of Representatives shall select out of the candidates who shall have the five highest number of votes, the man who in their opinion may be best qualified for the office.

The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. And this will be thought no inconsiderable recommendation of the Constitution, by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration. Though we cannot acquiesce in the political heresy of the poet who says: “For forms of government let fools contest That which is best administered is best,” yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration.

The Vice-President is to be chosen in the same manner with the President; with this difference, that the Senate is to do, in respect to the former, what is to be done by the House of Representatives, in respect to the latter.

The appointment of an extraordinary person, as Vice-President, has been objected to as superfluous, if not mischievous. It has been alleged, that it would have been preferable to have authorized the Senate to elect out of their own body an officer answering that description. But two considerations seem to justify the ideas of the convention in this respect. One is, that to secure at all times the possibility of a definite resolution of the body, it is necessary that the President should have only a casting vote. And to take the senator of any State from his seat as senator, to place him in that of President of the Senate, would be to exchange, in regard to the State from which he came, a constant for a contingent vote. The other consideration is, that as the Vice-President may occasionally become a substitute for the President, in the supreme executive magistracy, all the reasons which recommend the mode of election prescribed for the one, apply with great if not with equal force to the manner of appointing the other. It is remarkable that in this, as in most other instances, the objection which is made would lie against the constitution of this State. We have a Lieutenant-Governor, chosen by the people at large, who presides in the Senate, and is the constitutional substitute for the Governor, in casualties similar to those which would authorize the Vice-President to exercise the authorities and discharge the duties of the President.

PUBLIUS.

1. Vide FEDERAL FARMER.

The Real Character of the Executive
From the New York Packet
Friday, March 14, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

I PROCEED now to trace the real characters of the proposed Executive, as they are marked out in the plan of the convention. This will serve to place in a strong light the unfairness of the representations which have been made in regard to it.

The first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. This will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York.

That magistrate is to be elected for FOUR years; and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence. In these circumstances there is a total dissimilitude between HIM and a king of Great Britain, who is an HEREDITARY monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between HIM and a governor of New York, who is elected for THREE years, and is re-eligible without limitation or intermission. If we consider how much less time would be requisite for establishing a dangerous influence in a single State, than for establishing a like influence throughout the United States, we must conclude that a duration of FOUR years for the Chief Magistrate of the Union is a degree of permanency far less to be dreaded in that office, than a duration of THREE years for a corresponding office in a single State.

The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. In this delicate and important circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.

The President of the United States is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law, if, upon that reconsideration, it be approved by two thirds of both houses. The king of Great Britain, on his part, has an absolute negative upon the acts of the two houses of Parliament. The disuse of that power for a considerable time past does not affect the reality of its existence; and is to be ascribed wholly to the crown’s having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation. The qualified negative of the President differs widely from this absolute negative of the British sovereign; and tallies exactly with the revisionary authority of the council of revision of this State, of which the governor is a constituent part. In this respect the power of the President would exceed that of the governor of New York, because the former would possess, singly, what the latter shares with the chancellor and judges; but it would be precisely the same with that of the governor of Massachusetts, whose constitution, as to this article, seems to have been the original from which the convention have copied.

The President is to be the “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 of the United States. He is to have power to grant reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them WITH RESPECT TO THE TIME OF ADJOURNMENT, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the United States.” In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these: First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Secondly. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature. [1] The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States. Thirdly. The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? The better to judge of this matter, it will be necessary to recollect, that, by the proposed Constitution, the offense of treason is limited “to levying war upon the United States, and adhering to their enemies, giving them aid and comfort”; and that by the laws of New York it is confined within similar bounds. Fourthly. The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment. The British monarch may prorogue or even dissolve the Parliament. The governor of New York may also prorogue the legislature of this State for a limited time; a power which, in certain situations, may be employed to very important purposes.

The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. He can of his own accord make treaties of peace, commerce, alliance, and of every other description. It has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification, of Parliament. But I believe this doctrine was never heard of, until it was broached upon the present occasion. Every jurist [2] of that kingdom, and every other man acquainted with its Constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plentitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction. The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipulations in a new treaty; and this may have possibly given birth to the imagination, that its co-operation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause: from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in them by the operation of the treaty; and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can do only with the concurrence of a branch of the legislature. It must be admitted, that, in this instance, the power of the federal Executive would exceed that of any State Executive. But this arises naturally from the sovereign power which relates to treaties. If the Confederacy were to be dissolved, it would become a question, whether the Executives of the several States were not solely invested with that delicate and important prerogative.

The President is also to be authorized to receive ambassadors and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor.

The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution. The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king; nor is it equal to that of the governor of New York, if we are to interpret the meaning of the constitution of the State by the practice which has obtained under it. The power of appointment is with us lodged in a council, composed of the governor and four members of the Senate, chosen by the Assembly. The governor CLAIMS, and has frequently EXERCISED, the right of nomination, and is ENTITLED to a casting vote in the appointment. If he really has the right of nominating, his authority is in this respect equal to that of the President, and exceeds it in the article of the casting vote. In the national government, if the Senate should be divided, no appointment could be made; in the government of New York, if the council should be divided, the governor can turn the scale, and confirm his own nomination. [3] If we compare the publicity which must necessarily attend the mode of appointment by the President and an entire branch of the national legislature, with the privacy in the mode of appointment by the governor of New York, closeted in a secret apartment with at most four, and frequently with only two persons; and if we at the same time consider how much more easy it must be to influence the small number of which a council of appointment consists, than the considerable number of which the national Senate would consist, we cannot hesitate to pronounce that the power of the chief magistrate of this State, in the disposition of offices, must, in practice, be greatly superior to that of the Chief Magistrate of the Union.

Hence it appears that, except as to the concurrent authority of the President in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the Governor of New York. And it appears yet more unequivocally, that there is no pretense for the parallel which has been attempted between him and the king of Great Britain. But to render the contrast in this respect still more striking, it may be of use to throw the principal circumstances of dissimilitude into a closer group.

The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a QUALIFIED negative upon the acts of the legislative body; the other has an ABSOLUTE negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of DECLARING war, and of RAISING and REGULATING fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the SOLE POSSESSOR of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism.

PUBLIUS.
1. A writer in a Pennsylvania paper, under the signature of TAMONY, has asserted that the king of Great Britain owes his prerogative as commander-in-chief to an annual mutiny bill. The truth is, on the contrary, that his prerogative, in this respect, is immemorial, and was only disputed, “contrary to all reason and precedent,” as Blackstone vol. i., page 262, expresses it, by the Long Parliament of Charles I. but by the statute the 13th of Charles II., chap. 6, it was declared to be in the king alone, for that the sole supreme government and command of the militia within his Majesty’s realms and dominions, and of all forces by sea and land, and of all forts and places of strength, EVER WAS AND IS the undoubted right of his Majesty and his royal predecessors, kings and queens of England, and that both or either house of Parliament cannot nor ought to pretend to the same.

2. Vide Blackstone’s “Commentaries,” vol i., p. 257.

3. Candor, however, demands an acknowledgment that I do not think the claim of the governor to a right of nomination well founded. Yet it is always justifiable to reason from the practice of a government, till its propriety has been constitutionally questioned. And independent of this claim, when we take into view the other considerations, and pursue them through all their consequences, we shall be inclined to draw much the same conclusion.

The Executive Department Further Considered
From the New York Packet
Tuesday, March 18, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

THERE is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.

There can be no need, however, to multiply arguments or examples on this head. A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.

Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention?

The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers.

The ingredients which constitute safety in the republican sense are, first, a due dependence on the people, secondly, a due responsibility.

Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature. They have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.

That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.

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. [1] 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.

The experience of other nations will afford little instruction on this head. As far, however, as it teaches any thing, it teaches us not to be enamoured of plurality in the Executive. We have seen that the Achaeans, on an experiment of two Praetors, were induced to abolish one. The Roman history records many instances of mischiefs to the republic from the dissensions between the Consuls, and between the military Tribunes, who were at times substituted for the Consuls. But it gives us no specimens of any peculiar advantages derived to the state from the circumstance of the plurality of those magistrates. That the dissensions between them were not more frequent or more fatal, is a matter of astonishment, until we advert to the singular position in which the republic was almost continually placed, and to the prudent policy pointed out by the circumstances of the state, and pursued by the Consuls, of making a division of the government between them. The patricians engaged in a perpetual struggle with the plebeians for the preservation of their ancient authorities and dignities; the Consuls, who were generally chosen out of the former body, were commonly united by the personal interest they had in the defense of the privileges of their order. In addition to this motive of union, after the arms of the republic had considerably expanded the bounds of its empire, it became an established custom with the Consuls to divide the administration between themselves by lot one of them remaining at Rome to govern the city and its environs, the other taking the command in the more distant provinces. 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.

But quitting the dim light of historical research, attaching ourselves purely to the dictates of reason and good sense, we shall discover much greater cause to reject than to approve the idea of plurality in the Executive, under any modification whatever.

Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. From either, and especially from all these causes, the most bitter dissensions are apt to spring. Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. And what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy.

Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. But if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character.

Upon the principles of a free government, inconveniences from the source just mentioned must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the Executive. It is here too that they may be most pernicious. In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority. When a resolution too is once taken, the opposition must be at an end. That resolution is a law, and resistance to it punishable. But no favorable circumstances palliate or atone for the disadvantages of dissension in the executive department. Here, they are pure and unmixed. There is no point at which they cease to operate. They serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. They constantly counteract those qualities in the Executive which are the most necessary ingredients in its composition, vigor and expedition, and this without any counterbalancing good. In the conduct of war, in which the energy of the Executive is the bulwark of the national security, every thing would be to be apprehended from its plurality.

It must be confessed that these observations apply with principal weight to the first case supposed that is, to a plurality of magistrates of equal dignity and authority a scheme, the advocates for which are not likely to form a numerous sect; but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the operations of the ostensible Executive. An artful cabal in that council would be able to distract and to enervate the whole system of administration. If no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness.

But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility.

Responsibility is of two kinds to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.

“I was overruled by my council. The council were so divided in their opinions that it was impossible to obtain any better resolution on the point.” These and similar pretexts are constantly at hand, whether true or false. And who is there that will either take the trouble or incur the odium, of a strict scrutiny into the secret springs of the transaction? Should there be found a citizen zealous enough to undertake the unpromising task, if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties?

In the single instance in which the governor of this State is coupled with a council that is, in the appointment to offices, we have seen the mischiefs of it in the view now under consideration. Scandalous appointments to important offices have been made. Some cases, indeed, have been so flagrant that ALL PARTIES have agreed in the impropriety of the thing. When inquiry has been made, the blame has been laid by the governor on the members of the council, who, on their part, have charged it upon his nomination; while the people remain altogether at a loss to determine, by whose influence their interests have been committed to hands so unqualified and so manifestly improper. In tenderness to individuals, I forbear to descend to particulars.

It is evident from these considerations, that the plurality of the Executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, secondly, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it.

In England, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the public peace, that he is unaccountable for his administration, and his person sacred. Nothing, therefore, can be wiser in that kingdom, than to annex to the king a constitutional council, who may be responsible to the nation for the advice they give. Without this, there would be no responsibility whatever in the executive department an idea inadmissible in a free government. But even there the king is not bound by the resolutions of his council, though they are answerable for the advice they give. He is the absolute master of his own conduct in the exercise of his office, and may observe or disregard the counsel given to him at his sole discretion.

But in a republic, where every magistrate ought to be personally responsible for his behavior in office the reason which in the British Constitution dictates the propriety of a council, not only ceases to apply, but turns against the institution. In the monarchy of Great Britain, it furnishes a substitute for the prohibited responsibility of the chief magistrate, which serves in some degree as a hostage to the national justice for his good behavior. In the American republic, it would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the Chief Magistrate himself.

The idea of a council to the Executive, which has so generally obtained in the State constitutions, has been derived from that maxim of republican jealousy which considers power as safer in the hands of a number of men than of a single man. If the maxim should be admitted to be applicable to the case, I should contend that the advantage on that side would not counterbalance the numerous disadvantages on the opposite side. But I do not think the rule at all applicable to the executive power. I clearly concur in opinion, in this particular, with a writer whom the celebrated Junius pronounces to be “deep, solid, and ingenious,” that “the executive power is more easily confined when it is ONE” [2]; that it is far more safe there should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the Executive is rather dangerous than friendly to liberty.

A little consideration will satisfy us, that the species of security sought for in the multiplication of the Executive, is attainable. Numbers must be so great as to render combination difficult, or they are rather a source of danger than of security. The united credit and influence of several individuals must be more formidable to liberty, than the credit and influence of either of them separately. When power, therefore, is placed in the hands of so small a number of men, as to admit of their interests and views being easily combined in a common enterprise, by an artful leader, it becomes more liable to abuse, and more dangerous when abused, than if it be lodged in the hands of one man; who, from the very circumstance of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a mass of influence as when he is associated with others. The Decemvirs of Rome, whose name denotes their number [3], were more to be dreaded in their usurpation than any ONE of them would have been. No person would think of proposing an Executive much more numerous than that body; from six to a dozen have been suggested for the number of the council. The extreme of these numbers, is not too great for an easy combination; and from such a combination America would have more to fear, than from the ambition of any single individual. A council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad and are almost always a cloak to his faults.

I forbear to dwell upon the subject of expense; though it be evident that if the council should be numerous enough to answer the principal end aimed at by the institution, the salaries of the members, who must be drawn from their homes to reside at the seat of government, would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility. I will only add that, prior to the appearance of the Constitution, I rarely met with an intelligent man from any of the States, who did not admit, as the result of experience, that the UNITY of the executive of this State was one of the best of the distinguishing features of our constitution.

PUBLIUS.

1. New York has no council except for the single purpose of appointing to offices; New Jersey has a council whom the governor may consult. But I think, from the terms of the constitution, their resolutions do not bind him.

2. De Lolme.

3. Ten.

The Duration in Office of the Executive
From the New York Packet
Tuesday, March 18, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

DURATION in office has been mentioned as the second requisite to the energy of the Executive authority. This has relation to two objects: to the personal firmness of the executive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices. With regard to the first, it must be evident, that the longer the duration in office, the greater will be the probability of obtaining so important an advantage. It is a general principle of human nature, that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title; and, of course, will be willing to risk more for the sake of the one, than for the sake of the other. This remark is not less applicable to a political privilege, or honor, or trust, than to any article of ordinary property. The inference from it is, that a man acting in the capacity of chief magistrate, under a consciousness that in a very short time he MUST lay down his office, will be apt to feel himself too little interested in it to hazard any material censure or perplexity, from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body. If the case should only be, that he MIGHT lay it down, unless continued by a new choice, and if he should be desirous of being continued, his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity, or debase his fortitude. In either case, feebleness and irresolution must be the characteristics of the station.

There are some who would be inclined to regard the servile pliancy of the Executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. It is a just observation, that the people commonly INTEND the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always REASON RIGHT about the MEANS of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure.

But however inclined we might be to insist upon an unbounded complaisance in the Executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. The latter may sometimes stand in opposition to the former, and at other times the people may be entirely neutral. In either supposition, it is certainly desirable that the Executive should be in a situation to dare to act his own opinion with vigor and decision.

The same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. To what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such a separation must be merely nominal, and incapable of producing the ends for which it was established. It is one thing to be subordinate to the laws, and another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the Constitution, unites all power in the same hands. The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.

It may perhaps be asked, how the shortness of the duration in office can affect the independence of the Executive on the legislature, unless the one were possessed of the power of appointing or displacing the other. One answer to this inquiry may be drawn from the principle already remarked that is, from the slender interest a man is apt to take in a short-lived advantage, and the little inducement it affords him to expose himself, on account of it, to any considerable inconvenience or hazard. Another answer, perhaps more obvious, though not more conclusive, will result from the consideration of the influence of the legislative body over the people; which might be employed to prevent the re-election of a man who, by an upright resistance to any sinister project of that body, should have made himself obnoxious to its resentment.

It may be asked also, whether a duration of four years would answer the end proposed; and if it would not, whether a less period, which would at least be recommended by greater security against ambitious designs, would not, for that reason, be preferable to a longer period, which was, at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate.

It cannot be affirmed, that a duration of four years, or any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government. Between the commencement and termination of such a period, there would always be a considerable interval, in which the prospect of annihilation would be sufficiently remote, not to have an improper effect upon the conduct of a man indued with a tolerable portion of fortitude; and in which he might reasonably promise himself, that there would be time enough before it arrived, to make the community sensible of the propriety of the measures he might incline to pursue. Though it be probable that, as he approached the moment when the public were, by a new election, to signify their sense of his conduct, his confidence, and with it his firmness, would decline; yet both the one and the other would derive support from the opportunities which his previous continuance in the station had afforded him, of establishing himself in the esteem and good-will of his constituents. He might, then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens. As, on the one hand, a duration of four years will contribute to the firmness of the Executive in a sufficient degree to render it a very valuable ingredient in the composition; so, on the other, it is not enough to justify any alarm for the public liberty. If a British House of Commons, from the most feeble beginnings, FROM THE MERE POWER OF ASSENTING OR DISAGREEING TO THE IMPOSITION OF A NEW TAX, have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the Church as State; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation [1] attempted by them, what would be to be feared from an elective magistrate of four years’ duration, with the confined authorities of a President of the United States? What, but that he might be unequal to the task which the Constitution assigns him? I shall only add, that if his duration be such as to leave a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments.

PUBLIUS.

1. This was the case with respect to Mr. Fox’s India bill, which was carried in the House of Commons, and rejected in the House of Lords, to the entire satisfaction, as it is said, of the people.

The Same Subject Continued, and Re-Eligibility of the Executive Considered
From the New York Packet
Friday, March 21, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

THE administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary; but in its most usual, and perhaps its most precise signification. it is limited to executive details, and falls peculiarly within the province of the executive department. The actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the directions of the operations of war, these, and other matters of a like nature, constitute what seems to be most properly understood by the administration of government. The persons, therefore, to whose immediate management these different matters are committed, ought to be considered as the assistants or deputies of the chief magistrate, and on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence. This view of the subject will at once suggest to us the intimate connection between the duration of the executive magistrate in office and the stability of the system of administration. To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert; and in addition to this propensity, where the alteration has been the result of public choice, the person substituted is warranted in supposing that the dismission of his predecessor has proceeded from a dislike to his measures; and that the less he resembles him, the more he will recommend himself to the favor of his constituents. These considerations, and the influence of personal confidences and attachments, would be likely to induce every new President to promote a change of men to fill the subordinate stations; and these causes together could not fail to occasion a disgraceful and ruinous mutability in the administration of the government.

With a positive duration of considerable extent, I connect the circumstance of re-eligibility. The first is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits. The last is necessary to enable the people, when they see reason to approve of his conduct, to continue him in his station, in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration.

Nothing appears more plausible at first sight, nor more ill-founded upon close inspection, than a scheme which in relation to the present point has had some respectable advocates, I mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it, either for a limited period or forever after. This exclusion, whether temporary or perpetual, would have nearly the same effects, and these effects would be for the most part rather pernicious than salutary.

One ill effect of the exclusion would be a diminution of the inducements to good behavior. There are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of OBTAINING, by MERITING, a continuance of them. This position will not be disputed so long as it is admitted that the desire of reward is one of the strongest incentives of human conduct; or that the best security for the fidelity of mankind is to make their interests coincide with their duty. Even the love of fame, the ruling passion of the noblest minds, which would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit, requiring considerable time to mature and perfect them, if he could flatter himself with the prospect of being allowed to finish what he had begun, would, on the contrary, deter him from the undertaking, when he foresaw that he must quit the scene before he could accomplish the work, and must commit that, together with his own reputation, to hands which might be unequal or unfriendly to the task. The most to be expected from the generality of men, in such a situation, is the negative merit of not doing harm, instead of the positive merit of doing good.

Another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation. An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted, and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory; though the same man, probably, with a different prospect before him, might content himself with the regular perquisites of his situation, and might even be unwilling to risk the consequences of an abuse of his opportunities. His avarice might be a guard upon his avarice. Add to this that the same man might be vain or ambitious, as well as avaricious. And if he could expect to prolong his honors by his good conduct, he might hesitate to sacrifice his appetite for them to his appetite for gain. But with the prospect before him of approaching an inevitable annihilation, his avarice would be likely to get the victory over his caution, his vanity, or his ambition.

An ambitious man, too, when he found himself seated on the summit of his country’s honors, when he looked forward to the time at which he must descend from the exalted eminence for ever, and reflected that no exertion of merit on his part could save him from the unwelcome reverse; such a man, in such a situation, would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power, at every personal hazard, than if he had the probability of answering the same end by doing his duty.

Would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess?

A third ill effect of the exclusion would be, the depriving the community of the advantage of the experience gained by the chief magistrate in the exercise of his office. That experience is the parent of wisdom, is an adage the truth of which is recognized by the wisest as well as the simplest of mankind. What more desirable or more essential than this quality in the governors of nations? Where more desirable or more essential than in the first magistrate of a nation? Can it be wise to put this desirable and essential quality under the ban of the Constitution, and to declare that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted? This, nevertheless, is the precise import of all those regulations which exclude men from serving their country, by the choice of their fellow citizens, after they have by a course of service fitted themselves for doing it with a greater degree of utility.

A fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the state, their presence might be of the greatest moment to the public interest or safety. There is no nation which has not, at one period or another, experienced an absolute necessity of the services of particular men in particular situations; perhaps it would not be too strong to say, to the preservation of its political existence. How unwise, therefore, must be every such self-denying ordinance as serves to prohibit a nation from making use of its own citizens in the manner best suited to its exigencies and circumstances! Without supposing the personal essentiality of the man, it is evident that a change of the chief magistrate, at the breaking out of a war, or at any similar crisis, for another, even of equal merit, would at all times be detrimental to the community, inasmuch as it would substitute inexperience to experience, and would tend to unhinge and set afloat the already settled train of the administration.

A fifth ill effect of the exclusion would be, that it would operate as a constitutional interdiction of stability in the administration. By NECESSITATING a change of men, in the first office of the nation, it would necessitate a mutability of measures. It is not generally to be expected, that men will vary and measures remain uniform. The contrary is the usual course of things. And we need not be apprehensive that there will be too much stability, while there is even the option of changing; nor need we desire to prohibit the people from continuing their confidence where they think it may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of fluctuating councils and a variable policy.

These are some of the disadvantages which would flow from the principle of exclusion. They apply most forcibly to the scheme of a perpetual exclusion; but when we consider that even a partial exclusion would always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other.

What are the advantages promised to counterbalance these disadvantages? They are represented to be: 1st, greater independence in the magistrate; 2d, greater security to the people. Unless the exclusion be perpetual, there will be no pretense to infer the first advantage. But even in that case, may he have no object beyond his present station, to which he may sacrifice his independence? May he have no connections, no friends, for whom he may sacrifice it? May he not be less willing by a firm conduct, to make personal enemies, when he acts under the impression that a time is fast approaching, on the arrival of which he not only MAY, but MUST, be exposed to their resentments, upon an equal, perhaps upon an inferior, footing? It is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement.

As to the second supposed advantage, there is still greater reason to entertain doubts concerning it. If the exclusion were to be perpetual, a man of irregular ambition, of whom alone there could be reason in any case to entertain apprehension, would, with infinite reluctance, yield to the necessity of taking his leave forever of a post in which his passion for power and pre-eminence had acquired the force of habit. And if he had been fortunate or adroit enough to conciliate the good-will of the people, he might induce them to consider as a very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving a fresh proof of their attachment to a favorite. There may be conceived circumstances in which this disgust of the people, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possibility of a perpetuation in office, by the voluntary suffrages of the community, exercising a constitutional privilege.

There is an excess of refinement in the idea of disabling the people to continue in office men who had entitled themselves, in their opinion, to approbation and confidence; the advantages of which are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive.

PUBLIUS.

The Provision For The Support of the Executive, and the Veto Power 
From the New York Packet
Friday, March 21, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

THE third ingredient towards constituting the vigor of the executive authority, is an adequate provision for its support. It is evident that, without proper attention to this article, the separation of the executive from the legislative department would be merely nominal and nugatory. The legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations. These expressions, taken in all the latitude of the terms, would no doubt convey more than is intended. There are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils; and in the main it will be found that a power over a man’s support is a power over his will. If it were necessary to confirm so plain a truth by facts, examples would not be wanting, even in this country, of the intimidation or seduction of the Executive by the terrors or allurements of the pecuniary arrangements of the legislative body.

It is not easy, therefore, to commend too highly the judicious attention which has been paid to this subject in the proposed Constitution. It is there provided that “The President of the United States shall, at stated times, receive for his services a compensation WHICH SHALL NEITHER BE INCREASED NOR DIMINISHED DURING THE PERIOD FOR WHICH HE SHALL HAVE BEEN ELECTED; and he SHALL NOT RECEIVE WITHIN THAT PERIOD ANY OTHER EMOLUMENT from the United States, or any of them.” It is impossible to imagine any provision which would have been more eligible than this. The legislature, on the appointment of a President, is once for all to declare what shall be the compensation for his services during the time for which he shall have been elected. This done, they will have no power to alter it, either by increase or diminution, till a new period of service by a new election commences. They can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice. Neither the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act. He can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution.

The last of the requisites to energy, which have been enumerated, are competent powers. Let us proceed to consider those which are proposed to be vested in the President of the United States.

The first thing that offers itself to our observation, is the qualified negative of the President upon the acts or resolutions of the two houses of the legislature; or, in other words, his power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body.

The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments, has been already suggested and repeated; the insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defense, has been inferred and proved. From these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the Executive, upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. And in the one mode or the other, the legislative and executive powers might speedily come to be blended in the same hands. If even no propensity had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us, that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self defense.

But the power in question has a further use. It not only serves as a shield to the Executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body.

The propriety of a negative has, upon some occasions, been combated by an observation, that it was not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this presumption should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body.

But this observation, when examined, will appear rather specious than solid. The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflection, would condemn. The primary inducement to conferring the power in question upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. It is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them.

It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. They will consider every institution calculated to restrain the excess of law-making, and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm; because it is favorable to greater stability in the system of legislation. The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones.

Nor is this all. The superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and there would oftener be room for a charge of timidity than of rashness in the exercise of it. A king of Great Britain, with all his train of sovereign attributes, and with all the influence he draws from a thousand sources, would, at this day, hesitate to put a negative upon the joint resolutions of the two houses of Parliament. He would not fail to exert the utmost resources of that influence to strangle a measure disagreeable to him, in its progress to the throne, to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body. Nor is it probable, that he would ultimately venture to exert his prerogatives, but in a case of manifest propriety, or extreme necessity. All well-informed men in that kingdom will accede to the justness of this remark. A very considerable period has elapsed since the negative of the crown has been exercised.

If a magistrate so powerful and so well fortified as a British monarch, would have scruples about the exercise of the power under consideration, how much greater caution may be reasonably expected in a President of the United States, clothed for the short period of four years with the executive authority of a government wholly and purely republican?

It is evident that there would be greater danger of his not using his power when necessary, than of his using it too often, or too much. An argument, indeed, against its expediency, has been drawn from this very source. It has been represented, on this account, as a power odious in appearance, useless in practice. But it will not follow, that because it might be rarely exercised, it would never be exercised. In the case for which it is chiefly designed, that of an immediate attack upon the constitutional rights of the Executive, or in a case in which the public good was evidently and palpably sacrificed, a man of tolerable firmness would avail himself of his constitutional means of defense, and would listen to the admonitions of duty and responsibility. In the former supposition, his fortitude would be stimulated by his immediate interest in the power of his office; in the latter, by the probability of the sanction of his constituents, who, though they would naturally incline to the legislative body in a doubtful case, would hardly suffer their partiality to delude them in a very plain case. I speak now with an eye to a magistrate possessing only a common share of firmness. There are men who, under any circumstances, will have the courage to do their duty at every hazard.

But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single VETO, might not scruple to return it for reconsideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections. He would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct in the public opinion. A direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objections to be approved or disapproved by those to whom they are addressed. In proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason, it may in practice be found more effectual. It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive. It is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority. A power of this nature in the Executive, will often have a silent and unperceived, though forcible, operation. When men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared.

This qualified negative, as has been elsewhere remarked, is in this State vested in a council, consisting of the governor, with the chancellor and judges of the Supreme Court, or any two of them. It has been freely employed upon a variety of occasions, and frequently with success. And its utility has become so apparent, that persons who, in compiling the Constitution, were violent opposers of it, have from experience become its declared admirers. [1]

I have in another place remarked, that the convention, in the formation of this part of their plan, had departed from the model of the constitution of this State, in favor of that of Massachusetts. Two strong reasons may be imagined for this preference. One is that the judges, who are to be the interpreters of the law, might receive an improper bias, from having given a previous opinion in their revisionary capacities; the other is that by being often associated with the Executive, they might be induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judiciary departments. It is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the Executive.

PUBLIUS.

1. Mr. Abraham Yates, a warm opponent of the plan of the convention is of this number.

The Command of the Military and Naval Forces, and the Pardoning Power of the Executive
From the New York Packet
Tuesday, March 25, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

THE President of the United States is to 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 of the United States.” The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.

“The President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers.” This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office.

He is also to be authorized to grant “reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.” Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.

PUBLIUS.

The Treaty Making Power of the Executive
For the Independent Journal

Author: Alexander Hamilton

To the People of the State of New York:

THE President is to have power, “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.”

Though this provision has been assailed, on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. One ground of objection is the trite topic of the intermixture of powers; some contending that the President ought alone to possess the power of making treaties; others, that it ought to have been exclusively deposited in the Senate. Another source of objection is derived from the small number of persons by whom a treaty may be made. Of those who espouse this objection, a part are of opinion that the House of Representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two thirds of ALL the members of the Senate, to two thirds of the members PRESENT. As I flatter myself the observations made in a preceding number upon this part of the plan must have sufficed to place it, to a discerning eye, in a very favorable light, I shall here content myself with offering only some supplementary remarks, principally with a view to the objections which have been just stated.

With regard to the intermixture of powers, I shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the Executive with the Senate, in the article of treaties, is no infringement of that rule. I venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.

However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years’ duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.

To have intrusted the power of making treaties to the Senate alone, would have been to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations. It is true that the Senate would, in that case, have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former. Besides this, the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy. While the Union would, from this cause, lose a considerable advantage in the management of its external concerns, the people would lose the additional security which would result from the co-operation of the Executive. Though it would be imprudent to confide in him solely so important a trust, yet it cannot be doubted that his participation would materially add to the safety of the society. It must indeed be clear to a demonstration that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the separate possession of it by either of them. And whoever has maturely weighed the circumstances which must concur in the appointment of a President, will be satisfied that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity.

The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, SECRECY, and despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project.

The only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members PRESENT. It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. This consideration seems sufficient to determine our opinion, that the convention have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community. If two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position might be adduced from the examples of the Roman Tribuneship, the Polish Diet, and the States-General of the Netherlands, did not an example at home render foreign precedents unnecessary.

To require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better then merely to require a proportion of the attending members. The former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. The latter, by making the capacity of the body to depend on a PROPORTION which may be varied by the absence or presence of a single member, has the contrary effect. And as, by promoting punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. It ought not to be forgotten that, under the existing Confederation, two members MAY, and usually DO, represent a State; whence it happens that Congress, who now are solely invested with ALL THE POWERS of the Union, rarely consist of a greater number of persons than would compose the intended Senate. If we add to this, that as the members vote by States, and that where there is only a single member present from a State, his vote is lost, it will justify a supposition that the active voices in the Senate, where the members are to vote individually, would rarely fall short in number of the active voices in the existing Congress. When, in addition to these considerations, we take into view the co-operation of the President, we shall not hesitate to infer that the people of America would have greater security against an improper use of the power of making treaties, under the new Constitution, than they now enjoy under the Confederation. And when we proceed still one step further, and look forward to the probable augmentation of the Senate, by the erection of new States, we shall not only perceive ample ground of confidence in the sufficiency of the members to whose agency that power will be intrusted, but we shall probably be led to conclude that a body more numerous than the Senate would be likely to become, would be very little fit for the proper discharge of the trust.

PUBLIUS.

The Appointing Power of the Executive
From the New York Packet.
Tuesday, April 1, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

THE President is “to NOMINATE, and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution. But the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, or in the courts of law, or in the heads of departments. The President shall have power to fill up ALL VACANCIES which may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall EXPIRE at the end of their next session.”

It has been observed in a former paper, that “the true test of a good government is its aptitude and tendency to produce a good administration.” If the justness of this observation be admitted, the mode of appointing the officers of the United States contained in the foregoing clauses, must, when examined, be allowed to be entitled to particular commendation. It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union; and it will not need proof, that on this point must essentially depend the character of its administration.

It will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the concurrence of such an assembly. The exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else. When, therefore, mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the description already given. The people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men.

Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: “Give us the man we wish for this office, and you shall have the one you wish for that.” This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.

The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of NOMINATION, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.

But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

To this reasoning it has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views. This supposition of universal venality in human nature is little less an error in political reasoning, than the supposition of universal rectitude. The institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments. The venality of the British House of Commons has been long a topic of accusation against that body, in the country to which they belong as well as in this; and it cannot be doubted that the charge is, to a considerable extent, well founded. But it is as little to be doubted, that there is always a large proportion of the body, which consists of independent and public-spirited men, who have an influential weight in the councils of the nation. Hence it is (the present reign not excepted) that the sense of that body is often seen to control the inclinations of the monarch, both with regard to men and to measures. Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable. A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate. Nor is the integrity of the Senate the only reliance. The Constitution has provided some important guards against the danger of executive influence upon the legislative body: it declares that “No senator or representative shall during the time FOR WHICH HE WAS ELECTED, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the United States, shall be a member of either house during his continuance in office.”

PUBLIUS.

The Appointing Power Continued and Other Powers of the Executive Considered
From the New York Packet.
Friday, April 4, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

IT HAS been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.

To this union of the Senate with the President, in the article of appointments, it has in some cases been suggested that it would serve to give the President an undue influence over the Senate, and in others that it would have an opposite tendency, a strong proof that neither suggestion is true.

To state the first in its proper form, is to refute it. It amounts to this: the President would have an improper INFLUENCE OVER the Senate, because the Senate would have the power of RESTRAINING him. This is an absurdity in terms. It cannot admit of a doubt that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomination subject to their control.

Let us take a view of the converse of the proposition: “the Senate would influence the Executive.” As I have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer. In what manner is this influence to be exerted? In relation to what objects? The power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him. How could the Senate confer a benefit upon the President by the manner of employing their right of negative upon his nominations? If it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different conduct, I answer, that the instances in which the President could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the Senate. The POWER which can ORIGINATE the disposition of honors and emoluments, is more likely to attract than to be attracted by the POWER which can merely obstruct their course. If by influencing the President be meant RESTRAINING him, this is precisely what must have been intended. And it has been shown that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that Magistrate. The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils. Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this State, a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the Executive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace.

The reverse of all this characterizes the manner of appointment in this State. The council of appointment consists of from three to five persons, of whom the governor is always one. This small body, shut up in a private apartment, impenetrable to the public eye, proceed to the execution of the trust committed to them. It is known that the governor claims the right of nomination, upon the strength of some ambiguous expressions in the constitution; but it is not known to what extent, or in what manner he exercises it; nor upon what occasions he is contradicted or opposed. The censure of a bad appointment, on account of the uncertainty of its author, and for want of a determinate object, has neither poignancy nor duration. And while an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost. The most that the public can know, is that the governor claims the right of nomination; that TWO out of the inconsiderable number of FOUR men can too often be managed without much difficulty; that if some of the members of a particular council should happen to be of an uncomplying character, it is frequently not impossible to get rid of their opposition by regulating the times of meeting in such a manner as to render their attendance inconvenient; and that from whatever cause it may proceed, a great number of very improper appointments are from time to time made. Whether a governor of this State avails himself of the ascendant he must necessarily have, in this delicate and important part of the administration, to prefer to offices men who are best qualified for them, or whether he prostitutes that advantage to the advancement of persons whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of personal influence, are questions which, unfortunately for the community, can only be the subjects of speculation and conjecture.

Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. Their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination. And as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. The private attachments of one man might easily be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the government in a few families, and would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived. If, to avoid an accumulation of offices, there was to be a frequent change in the persons who were to compose the council, this would involve the mischiefs of a mutable administration in their full extent. Such a council would also be more liable to executive influence than the Senate, because they would be fewer in number, and would act less immediately under the public inspection. Such a council, in fine, as a substitute for the plan of the convention, would be productive of an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distribution of public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the Executive. And yet such a council has been warmly contended for as an essential amendment in the proposed Constitution.

I could not with propriety conclude my observations on the subject of appointments without taking notice of a scheme for which there have appeared some, though but few advocates; I mean that of uniting the House of Representatives in the power of making them. I shall, however, do little more than mention it, as I cannot imagine that it is likely to gain the countenance of any considerable part of the community. A body so fluctuating and at the same time so numerous, can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. All the advantages of the stability, both of the Executive and of the Senate, would be defeated by this union, and infinite delays and embarrassments would be occasioned. The example of most of the States in their local constitutions encourages us to reprobate the idea.

The only remaining powers of the Executive are comprehended in giving information to Congress of the state of the Union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the United States.

Except some cavils about the power of convening EITHER house of the legislature, and that of receiving ambassadors, no objection has been made to this class of authorities; nor could they possibly admit of any. It required, indeed, an insatiable avidity for censure to invent exceptions to the parts which have been excepted to. In regard to the power of convening either house of the legislature, I shall barely remark, that in respect to the Senate at least, we can readily discover a good reason for it. AS this body has a concurrent power with the Executive in the article of treaties, it might often be necessary to call it together with a view to this object, when it would be unnecessary and improper to convene the House of Representatives. As to the reception of ambassadors, what I have said in a former paper will furnish a sufficient answer.

We have now completed a survey of the structure and powers of the executive department, which, I have endeavored to show, combines, as far as republican principles will admit, all the requisites to energy. The remaining inquiry is: Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility? The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared, the Chief Magistrate of the United States would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?

PUBLIUS.

The Judiciary Department
From McLEAN’S Edition, New York.

Author: Alexander Hamilton

To the People of the State of New York:

WE PROCEED now to an examination of the judiciary department of the proposed government.

In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. To these points, therefore, our observations shall be confined.

The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their relations to each other.

First. As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition.

Second. As to the tenure by which the judges are to hold their places; this chiefly concerns their duration in office; the provisions for their support; the precautions for their responsibility.

According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power [1] ; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” [2] And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference.

But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies, [3] in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.

But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.

There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.

Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established GOOD BEHAVIOR as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.

PUBLIUS.

1. The celebrated Montesquieu, speaking of them, says: “Of the three powers above mentioned, the judiciary is next to nothing.” “Spirit of Laws.” vol. i., page 186.

2. Idem, page 181.

3. Vide “Protest of the Minority of the Convention of Pennsylvania,” Martin’s Speech, etc.

The Judiciary Department Continued
From McLEAN’S Edition, New York.
Author: Alexander Hamilton
To the People of the State of New York:
NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, A POWER OVER A MAN’s SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL. And we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good government in every State, have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head. Some of these indeed have declared that PERMANENT [1] salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention accordingly has provided that the judges of the United States “shall at STATED TIMES receive for their services a compensation which shall not be DIMINISHED during their continuance in office.”
This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. It will be observed that a difference has been made by the convention between the compensation of the President and of the judges, That of the former can neither be increased nor diminished; that of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the President is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service.
This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges.
The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges.
The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification.
The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station, in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench.
PUBLIUS.

1. Vide “Constitution of Massachusetts,” chapter 2, section I, article 13.

The Powers of the Judiciary
From McLEAN’S Edition, New York.

Author: Alexander Hamilton

To the People of the State of New York:

To JUDGE with accuracy of the proper extent of the federal judicature, it will be necessary to consider, in the first place, what are its proper objects.

It seems scarcely to admit of controversy, that the judiciary authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3d, to all those in which the United States are a party; 4th, to all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased.

The first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government. The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union. There is no third course that I can imagine. The latter appears to have been thought by the convention preferable to the former, and, I presume, will be most agreeable to the States.

As to the second point, it is impossible, by any argument or comment, to make it clearer than it is in itself. If there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.

Still less need be said in regard to the third point. Controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. Any other plan would be contrary to reason, to precedent, and to decorum.

The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the States. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. So great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals.

The power of determining causes between two States, between one State and the citizens of another, and between the citizens of different States, is perhaps not less essential to the peace of the Union than that which has been just examined. History gives us a horrid picture of the dissensions and private wars which distracted and desolated Germany prior to the institution of the Imperial Chamber by Maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. This was a court invested with authority to decide finally all differences among the members of the Germanic body.

A method of terminating territorial disputes between the States, under the authority of the federal head, was not unattended to, even in the imperfect system by which they have been hitherto held together. But there are many other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the Union. To some of these we have been witnesses in the course of our past experience. It will readily be conjectured that I allude to the fraudulent laws which have been passed in too many of the States. And though the proposed Constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes, that could not be foreseen nor specifically provided against. Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control.

It may be esteemed the basis of the Union, that “the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” And if it be a just principle that every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS OWN PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded.

The fifth point will demand little animadversion. The most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizances of maritime causes. These so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. The most important part of them are, by the present Confederation, submitted to federal jurisdiction.

The reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. This principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different States and their citizens. And it ought to have the same operation in regard to some cases between citizens of the same State. Claims to land under grants of different States, founded upon adverse pretensions of boundary, are of this description. The courts of neither of the granting States could be expected to be unbiased. The laws may have even prejudged the question, and tied the courts down to decisions in favor of the grants of the State to which they belonged. And even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government.

Having thus laid down and discussed the principles which ought to regulate the constitution of the federal judiciary, we will proceed to test, by these principles, the particular powers of which, according to the plan of the convention, it is to be composed. It is to comprehend “all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands and grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects.” This constitutes the entire mass of the judicial authority of the Union. Let us now review it in detail. It is, then, to extend:

First. To all cases in law and equity, ARISING UNDER THE CONSTITUTION and THE LAWS OF THE UNITED STATES. This corresponds with the two first classes of causes, which have been enumerated, as proper for the jurisdiction of the United States. It has been asked, what is meant by “cases arising under the Constitution,” in contradiction from those “arising under the laws of the United States”? The difference has been already explained. All the restrictions upon the authority of the State legislatures furnish examples of it. They are not, for instance, to emit paper money; but the interdiction results from the Constitution, and will have no connection with any law of the United States. Should paper money, notwithstanding, be emited, the controversies concerning it would be cases arising under the Constitution and not the laws of the United States, in the ordinary signification of the terms. This may serve as a sample of the whole.

It has also been asked, what need of the word “equity What equitable causes can grow out of the Constitution and laws of the United States? There is hardly a subject of litigation between individuals, which may not involve those ingredients of FRAUD, ACCIDENT, TRUST, or HARDSHIP, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the States. It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction. Agreements to convey lands claimed under the grants of different States, may afford another example of the necessity of an equitable jurisdiction in the federal courts. This reasoning may not be so palpable in those States where the formal and technical distinction between LAW and EQUITY is not maintained, as in this State, where it is exemplified by every day’s practice.

The judiciary authority of the Union is to extend:

Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace.

Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts.

Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes.

Fifth. To controversies between two or more States; between a State and citizens of another State; between citizens of different States. These belong to the fourth of those classes, and partake, in some measure, of the nature of the last.

Sixth. To cases between the citizens of the same State, CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES. These fall within the last class, and ARE THE ONLY INSTANCES IN WHICH THE PROPOSED CONSTITUTION DIRECTLY CONTEMPLATES THE COGNIZANCE OF DISPUTES BETWEEN THE CITIZENS OF THE SAME STATE.

Seventh. To cases between a State and the citizens thereof, and foreign States, citizens, or subjects. These have been already explained to belong to the fourth of the enumerated classes, and have been shown to be, in a peculiar manner, the proper subjects of the national judicature.

From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a well informed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages.

PUBLIUS.

The Judiciary Continued, and the Distribution of the Judicial Authority
From McLEAN’S Edition, New York.

Author: Alexander Hamilton

To the People of the State of New York:

LET US now return to the partition of the judiciary authority between different courts, and their relations to each other, “The judicial power of the United States is” (by the plan of the convention) “to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.” [1]

That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. The reasons for it have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. The same contradiction is observable in regard to this matter which has been remarked in several other cases. The very men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body.

The arguments, or rather suggestions, upon which this charge is founded, are to this effect: “The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.” This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.

In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion.

But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a PART of the legislative body. But though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity.

These considerations teach us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended.

It is not true, in the second place, that the Parliament of Great Britain, or the legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory, neither of the British, nor the State constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed Constitution, more than in either of them, by which it is forbidden. In the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject.

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.

Having now examined, and, I trust, removed the objections to the distinct and independent organization of the Supreme Court, I proceed to consider the propriety of the power of constituting inferior courts, [2] and the relations which will subsist between these and the former.

The power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the Supreme Court in every case of federal cognizance. It is intended to enable the national government to institute or AUTHORIZE, in each State or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits.

But why, it is asked, might not the same purpose have been accomplished by the instrumentality of the State courts? This admits of different answers. Though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national Constitution. To confer the power of determining such causes upon the existing courts of the several States, would perhaps be as much “to constitute tribunals,” as to create new courts with the like power. But ought not a more direct and explicit provision to have been made in favor of the State courts? There are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover, that courts constituted like those of some of the States would be improper channels of the judicial authority of the Union. State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws. And if there was a necessity for confiding the original cognizance of causes arising under those laws to them there would be a correspondent necessity for leaving the door of appeal as wide as possible. In proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. And well satisfied as I am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention. I should consider every thing calculated to give, in practice, an UNRESTRAINED COURSE to appeals, as a source of public and private inconvenience.

I am not sure, but that it will be found highly expedient and useful, to divide the United States into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every State. The judges of these courts, with the aid of the State judges, may hold circuits for the trial of causes in the several parts of the respective districts. Justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. This plan appears to me at present the most eligible of any that could be adopted; and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed Constitution.

These reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.” Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal. Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation.

It is inherent in the nature of sovereignty not to be amenable to the suit of an individual WITHOUT ITS CONSENT. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.

Let us resume the train of our observations. We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, “with such EXCEPTIONS and under such REGULATIONS as the Congress shall make.”

The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamors have been loud against it as applied to matters of fact. Some well-intentioned men in this State, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. A technical sense has been affixed to the term “appellate,” which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. But if I am not misinformed, the same meaning would not be given to it in any part of New England. There an appeal from one jury to another, is familiar both in language and practice, and is even a matter of course, until there have been two verdicts on one side. The word “appellate,” therefore, will not be understood in the same sense in New England as in New York, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular State. The expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. The mode of doing it may depend on ancient custom or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as may be judged advisable. If, therefore, the re-examination of a fact once determined by a jury, should in any case be admitted under the proposed Constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the Supreme Court.

But it does not follow that the re-examination of a fact once ascertained by a jury, will be permitted in the Supreme Court. Why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this State, that the latter has jurisdiction of the fact as well as the law? It is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it. [3] This is jurisdiction of both fact and law; nor is it even possible to separate them. Though the common-law courts of this State ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. I contend, therefore, on this ground, that the expressions, “appellate jurisdiction, both as to law and fact,” do not necessarily imply a re-examination in the Supreme Court of facts decided by juries in the inferior courts.

The following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determinable in different modes, some in the course of the COMMON LAW, others in the course of the CIVIL LAW. In the former, the revision of the law only will be, generally speaking, the proper province of the Supreme Court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. It is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. It will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the States ALL CAUSES are tried in this mode [4] ; and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. To avoid all inconveniences, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and FACT, and that this jurisdiction shall be subject to such EXCEPTIONS and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security.

This view of the matter, at any rate, puts it out of all doubt that the supposed ABOLITION of the trial by jury, by the operation of this provision, is fallacious and untrue. The legislature of the United States would certainly have full power to provide, that in appeals to the Supreme Court there should be no re-examination of facts where they had been tried in the original causes by juries. This would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial.

The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any EXCEPTIONS and REGULATIONS which may be thought advisable; that this appellate jurisdiction does, in no case, ABOLISH the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source.

PUBLIUS.

1. Article 3, sec. I.

2. This power has been absurdly represented as intended to abolish all the county courts in the several States, which are commonly called inferior courts. But the expressions of the Constitution are, to constitute “tribunals INFERIOR TO THE SUPREME COURT”; and the evident design of the provision is to enable the institution of local courts, subordinate to the Supreme, either in States or larger districts. It is ridiculous to imagine that county courts were in contemplation.

3. This word is composed of JUS and DICTIO, juris dictio or a speaking and pronouncing of the law.

4. I hold that the States will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in my next paper.

The Judiciary Continued
From McLEAN’S Edition, New York.

Author: Alexander Hamilton

To the People of the State of New York:

THE erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. ‘T is time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE.

Such questions, accordingly, have arisen upon the plan proposed by the convention, and particularly concerning the judiciary department. The principal of these respect the situation of the State courts in regard to those causes which are to be submitted to federal jurisdiction. Is this to be exclusive, or are those courts to possess a concurrent jurisdiction? If the latter, in what relation will they stand to the national tribunals? These are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention.

The principles established in a former paper [1] teach us that the States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just with respect to the former, as well as the latter. And under this impression, I shall lay it down as a rule, that the State courts will RETAIN the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes.

The only thing in the proposed Constitution, which wears the appearance of confining the causes of federal cognizance to the federal courts, is contained in this passage: “The JUDICIAL POWER of the United States SHALL BE VESTED in one Supreme Court, and in SUCH inferior courts as the Congress shall from time to time ordain and establish.” This might either be construed to signify, that the supreme and subordinate courts of the Union should alone have the power of deciding those causes to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one Supreme Court, and as many subordinate courts as Congress should think proper to appoint; or in other words, that the United States should exercise the judicial power with which they are to be invested, through one supreme tribunal, and a certain number of inferior ones, to be instituted by them. The first excludes, the last admits, the concurrent jurisdiction of the State tribunals; and as the first would amount to an alienation of State power by implication, the last appears to me the most natural and the most defensible construction.

But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the State courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be PECULIAR to, the Constitution to be established; for not to allow the State courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a pre-existing authority. I mean not therefore to contend that the United States, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but I hold that the State courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive, that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited.

Here another question occurs: What relation would subsist between the national and State courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter, to the Supreme Court of the United States. The Constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the Union may be eluded at the pleasure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and State systems are to be regarded as ONE WHOLE. The courts of the latter will of course be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions. The evident aim of the plan of the convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union. To confine, therefore, the general expressions giving appellate jurisdiction to the Supreme Court, to appeals from the subordinate federal courts, instead of allowing their extension to the State courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation.

But could an appeal be made to lie from the State courts to the subordinate federal judicatories? This is another of the questions which have been raised, and of greater difficulty than the former. The following considerations countenance the affirmative. The plan of the convention, in the first place, authorizes the national legislature “to constitute tribunals inferior to the Supreme Court.” [2] It declares, in the next place, that “the JUDICIAL POWER of the United States SHALL BE VESTED in one Supreme Court, and in such inferior courts as Congress shall ordain and establish”; and it then proceeds to enumerate the cases to which this judicial power shall extend. It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of that of the subordinate courts. The only outlines described for them, are that they shall be “inferior to the Supreme Court,” and that they shall not exceed the specified limits of the federal judiciary. Whether their authority shall be original or appellate, or both, is not declared. All this seems to be left to the discretion of the legislature. And this being the case, I perceive at present no impediment to the establishment of an appeal from the State courts to the subordinate national tribunals; and many advantages attending the power of doing it may be imagined. It would diminish the motives to the multiplication of federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the Supreme Court. The State tribunals may then be left with a more entire charge of federal causes; and appeals, in most cases in which they may be deemed proper, instead of being carried to the Supreme Court, may be made to lie from the State courts to district courts of the Union.

PUBLIUS.

1. No. 31.

2. Sec. 8th art. 1st.

The Judiciary Continued in Relation to Trial by Jury
From McLEAN’S Edition, New York.

Author: Alexander Hamilton

To the People of the State of New York:

THE objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is THAT RELATIVE TO THE WANT OF A CONSTITUTIONAL PROVISION for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the Constitution in regard to CIVIL CAUSES, is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is complete and universal, extending not only to every species of civil, but even to CRIMINAL CAUSES. To argue with respect to the latter would, however, be as vain and fruitless as to attempt the serious proof of the EXISTENCE of MATTER, or to demonstrate any of those propositions which, by their own internal evidence, force conviction, when expressed in language adapted to convey their meaning.

With regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only NOT PROVIDED FOR, is entirely ABOLISHED. Every man of discernment must at once perceive the wide difference between SILENCE and ABOLITION. But as the inventors of this fallacy have attempted to support it by certain LEGAL MAXIMS of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken.

The maxims on which they rely are of this nature: “A specification of particulars is an exclusion of generals”; or, “The expression of one thing is the exclusion of another.” Hence, say they, as the Constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter.

The rules of legal interpretation are rules of COMMONSENSE, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them is its conformity to the source from which they are derived. This being the case, let me ask if it is consistent with common-sense to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? Is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? If such a supposition would be unnatural and unreasonable, it cannot be rational to maintain that an injunction of the trial by jury in certain cases is an interdiction of it in others.

A power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the Constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. This discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge THE POWER of the legislature to exercise that mode if it should be thought proper. The pretense, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretense destitute of all just foundation.

From these observations this conclusion results: that the trial by jury in civil cases would not be abolished; and that the use attempted to be made of the maxims which have been quoted, is contrary to reason and common-sense, and therefore not admissible. Even if these maxims had a precise technical sense, corresponding with the idea of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction.

Having now seen that the maxims relied upon will not bear the use made of them, let us endeavor to ascertain their proper use and true meaning. This will be best done by examples. The plan of the convention declares that the power of Congress, or, in other words, of the NATIONAL LEGISLATURE, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.

In like manner the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority.

These examples are sufficient to elucidate the maxims which have been mentioned, and to designate the manner in which they should be used. But that there may be no misapprehensions upon this subject, I shall add one case more, to demonstrate the proper use of these maxims, and the abuse which has been made of them.

Let us suppose that by the laws of this State a married woman was incapable of conveying her estate, and that the legislature, considering this as an evil, should enact that she might dispose of her property by deed executed in the presence of a magistrate. In such a case there can be no doubt but the specification would amount to an exclusion of any other mode of conveyance, because the woman having no previous power to alienate her property, the specification determines the particular mode which she is, for that purpose, to avail herself of. But let us further suppose that in a subsequent part of the same act it should be declared that no woman should dispose of any estate of a determinate value without the consent of three of her nearest relations, signified by their signing the deed; could it be inferred from this regulation that a married woman might not procure the approbation of her relations to a deed for conveying property of inferior value? The position is too absurd to merit a refutation, and yet this is precisely the position which those must establish who contend that the trial by juries in civil cases is abolished, because it is expressly provided for in cases of a criminal nature.

From these observations it must appear unquestionably true, that trial by jury is in no case abolished by the proposed Constitution, and it is equally true, that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the same situation in which it is placed by the State constitutions, and will be in no degree altered or influenced by the adoption of the plan under consideration. The foundation of this assertion is, that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the State courts only, and in the manner which the State constitutions and laws prescribe. All land causes, except where claims under the grants of different States come into question, and all other controversies between the citizens of the same State, unless where they depend upon positive violations of the articles of union, by acts of the State legislatures, will belong exclusively to the jurisdiction of the State tribunals. Add to this, that admiralty causes, and almost all those which are of equity jurisdiction, are determinable under our own government without the intervention of a jury, and the inference from the whole will be, that this institution, as it exists with us at present, cannot possibly be affected to any great extent by the proposed alteration in our system of government.

The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. But I must acknowledge that I cannot readily discern the inseparable connection between the existence of liberty, and the trial by jury in civil cases. Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas-corpus act, seems therefore to be alone concerned in the question. And both of these are provided for, in the most ample manner, in the plan of the convention.

It has been observed, that trial by jury is a safeguard against an oppressive exercise of the power of taxation. This observation deserves to be canvassed.

It is evident that it can have no influence upon the legislature, in regard to the AMOUNT of taxes to be laid, to the OBJECTS upon which they are to be imposed, or to the RULE by which they are to be apportioned. If it can have any influence, therefore, it must be upon the mode of collection, and the conduct of the officers intrusted with the execution of the revenue laws.

As to the mode of collection in this State, under our own Constitution, the trial by jury is in most cases out of use. The taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent. And it is acknowledged on all hands, that this is essential to the efficacy of the revenue laws. The dilatory course of a trial at law to recover the taxes imposed on individuals, would neither suit the exigencies of the public nor promote the convenience of the citizens. It would often occasion an accumulation of costs, more burdensome than the original sum of the tax to be levied.

And as to the conduct of the officers of the revenue, the provision in favor of trial by jury in criminal cases, will afford the security aimed at. Wilful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offenses against the government, for which the persons who commit them may be indicted and punished according to the circumstances of the case.

The excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its favor is, that it is a security against corruption. As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter. The force of this consideration is, however, diminished by others. The sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, may be supposed more accessible to the touch of corruption than the judges, who are a collective body. It is not difficult to see, that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. In the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men who had been chosen by the government for their probity and good character. But making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success, it discourages attempts to seduce the integrity of either. The temptations to prostitution which the judges might have to surmount, must certainly be much fewer, while the co-operation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes.

Notwithstanding, therefore, the doubts I have expressed, as to the essentiality of trial by jury in civil cases to liberty, I admit that it is in most cases, under proper regulations, an excellent method of determining questions of property; and that on this account alone it would be entitled to a constitutional provision in its favor if it were possible to fix the limits within which it ought to be comprehended. There is, however, in all cases, great difficulty in this; and men not blinded by enthusiasm must be sensible that in a federal government, which is a composition of societies whose ideas and institutions in relation to the matter materially vary from each other, that difficulty must be not a little augmented. For my own part, at every new view I take of the subject, I become more convinced of the reality of the obstacles which, we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention.

The great difference between the limits of the jury trial in different States is not generally understood; and as it must have considerable influence on the sentence we ought to pass upon the omission complained of in regard to this point, an explanation of it is necessary. In this State, our judicial establishments resemble, more nearly than in any other, those of Great Britain. We have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in England), a court of admiralty and a court of chancery. In the courts of common law only, the trial by jury prevails, and this with some exceptions. In all the others a single judge presides, and proceeds in general either according to the course of the canon or civil law, without the aid of a jury. [1] In New Jersey, there is a court of chancery which proceeds like ours, but neither courts of admiralty nor of probates, in the sense in which these last are established with us. In that State the courts of common law have the cognizance of those causes which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in New Jersey than in New York. In Pennsylvania, this is perhaps still more the case, for there is no court of chancery in that State, and its common-law courts have equity jurisdiction. It has a court of admiralty, but none of probates, at least on the plan of ours. Delaware has in these respects imitated Pennsylvania. Maryland approaches more nearly to New York, as does also Virginia, except that the latter has a plurality of chancellors. North Carolina bears most affinity to Pennsylvania; South Carolina to Virginia. I believe, however, that in some of those States which have distinct courts of admiralty, the causes depending in them are triable by juries. In Georgia there are none but common-law courts, and an appeal of course lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out. In Connecticut, they have no distinct courts either of chancery or of admiralty, and their courts of probates have no jurisdiction of causes. Their common-law courts have admiralty and, to a certain extent, equity jurisdiction. In cases of importance, their General Assembly is the only court of chancery. In Connecticut, therefore, the trial by jury extends in PRACTICE further than in any other State yet mentioned. Rhode Island is, I believe, in this particular, pretty much in the situation of Connecticut. Massachusetts and New Hampshire, in regard to the blending of law, equity, and admiralty jurisdictions, are in a similar predicament. In the four Eastern States, the trial by jury not only stands upon a broader foundation than in the other States, but it is attended with a peculiarity unknown, in its full extent, to any of them. There is an appeal OF COURSE from one jury to another, till there have been two verdicts out of three on one side.

From this sketch it appears that there is a material diversity, as well in the modification as in the extent of the institution of trial by jury in civil cases, in the several States; and from this fact these obvious reflections flow: first, that no general rule could have been fixed upon by the convention which would have corresponded with the circumstances of all the States; and secondly, that more or at least as much might have been hazarded by taking the system of any one State for a standard, as by omitting a provision altogether and leaving the matter, as has been done, to legislative regulation.

The propositions which have been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. The minority of Pennsylvania have proposed this mode of expression for the purpose “Trial by jury shall be as heretofore” and this I maintain would be senseless and nugatory. The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer. Now it is evident that though trial by jury, with various limitations, is known in each State individually, yet in the United States, AS SUCH, it is at this time altogether unknown, because the present federal government has no judiciary power whatever; and consequently there is no proper antecedent or previous establishment to which the term HERETOFORE could relate. It would therefore be destitute of a precise meaning, and inoperative from its uncertainty.

As, on the one hand, the form of the provision would not fulfil the intent of its proposers, so, on the other, if I apprehend that intent rightly, it would be in itself inexpedient. I presume it to be, that causes in the federal courts should be tried by jury, if, in the State where the courts sat, that mode of trial would obtain in a similar case in the State courts; that is to say, admiralty causes should be tried in Connecticut by a jury, in New York without one. The capricious operation of so dissimilar a method of trial in the same cases, under the same government, is of itself sufficient to indispose every well regulated judgment towards it. Whether the cause should be tried with or without a jury, would depend, in a great number of cases, on the accidental situation of the court and parties.

But this is not, in my estimation, the greatest objection. I feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. I think it so particularly in cases which concern the public peace with foreign nations that is, in most cases where the question turns wholly on the laws of nations. Of this nature, among others, are all prize causes. Juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries. There would of course be always danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. Though the proper province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable.

It will add great weight to this remark, in relation to prize causes, to mention that the method of determining them has been thought worthy of particular regulation in various treaties between different powers of Europe, and that, pursuant to such treaties, they are determinable in Great Britain, in the last resort, before the king himself, in his privy council, where the fact, as well as the law, undergoes a re-examination. This alone demonstrates the impolicy of inserting a fundamental provision in the Constitution which would make the State systems a standard for the national government in the article under consideration, and the danger of encumbering the government with any constitutional provisions the propriety of which is not indisputable.

My convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. The great and primary use of a court of equity is to give relief IN EXTRAORDINARY CASES, which are EXCEPTIONS [2] to general rules. To unite the jurisdiction of such cases with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a SPECIAL determination; while a separation of the one from the other has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. Besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. They require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars.

It is true that the separation of the equity from the legal jurisdiction is peculiar to the English system of jurisprudence: which is the model that has been followed in several of the States. But it is equally true that the trial by jury has been unknown in every case in which they have been united. And the separation is essential to the preservation of that institution in its pristine purity. The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this State, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode.

These appeared to be conclusive reasons against incorporating the systems of all the States, in the formation of the national judiciary, according to what may be conjectured to have been the attempt of the Pennsylvania minority. Let us now examine how far the proposition of Massachusetts is calculated to remedy the supposed defect.

It is in this form: “In civil actions between citizens of different States, every issue of fact, arising in ACTIONS AT COMMON LAW, may be tried by a jury if the parties, or either of them request it.”

This, at best, is a proposition confined to one description of causes; and the inference is fair, either that the Massachusetts convention considered that as the only class of federal causes, in which the trial by jury would be proper; or that if desirous of a more extensive provision, they found it impracticable to devise one which would properly answer the end. If the first, the omission of a regulation respecting so partial an object can never be considered as a material imperfection in the system. If the last, it affords a strong corroboration of the extreme difficulty of the thing.

But this is not all: if we advert to the observations already made respecting the courts that subsist in the several States of the Union, and the different powers exercised by them, it will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize THAT species of causes which it is intended shall be entitled to a trial by jury. In this State, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in England upon that subject. In many of the other States the boundaries are less precise. In some of them every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be determined by a jury, if the parties, or either of them, choose it. Hence the same irregularity and confusion would be introduced by a compliance with this proposition, that I have already noticed as resulting from the regulation proposed by the Pennsylvania minority. In one State a cause would receive its determination from a jury, if the parties, or either of them, requested it; but in another State, a cause exactly similar to the other, must be decided without the intervention of a jury, because the State judicatories varied as to common-law jurisdiction.

It is obvious, therefore, that the Massachusetts proposition, upon this subject cannot operate as a general regulation, until some uniform plan, with respect to the limits of common-law and equitable jurisdictions, shall be adopted by the different States. To devise a plan of that kind is a task arduous in itself, and which it would require much time and reflection to mature. It would be extremely difficult, if not impossible, to suggest any general regulation that would be acceptable to all the States in the Union, or that would perfectly quadrate with the several State institutions.

It may be asked, Why could not a reference have been made to the constitution of this State, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer that it is not very probable the other States would entertain the same opinion of our institutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference. If the plan of taking one State as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each representation in favor of its own government; and it must be uncertain which of the States would have been taken as the model. It has been shown that many of them would be improper ones. And I leave it to conjecture, whether, under all circumstances, it is most likely that New York, or some other State, would have been preferred. But admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other States, at the partiality which had been shown to the institutions of one. The enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment.

To avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. For this I believe, no precedent is to be found in any member of the Union; and the considerations which have been stated in discussing the proposition of the minority of Pennsylvania, must satisfy every sober mind that the establishment of the trial by jury in ALL cases would have been an unpardonable error in the plan.

In short, the more it is considered the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable; or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government.

I cannot but persuade myself, on the other hand, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing in candid minds the apprehensions they may have entertained on the point. They have tended to show that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention; that even in far the greatest proportion of civil cases, and those in which the great body of the community is interested, that mode of trial will remain in its full force, as established in the State constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished [3] by that plan; and that there are great if not insurmountable difficulties in the way of making any precise and proper provision for it in a Constitution for the United States.

The best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit that the changes which are continually happening in the affairs of society may render a different mode of determining questions of property preferable in many cases in which that mode of trial now prevails. For my part, I acknowledge myself to be convinced that even in this State it might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. It is conceded by all reasonable men that it ought not to obtain in all cases. The examples of innovations which contract its ancient limits, as well in these States as in Great Britain, afford a strong presumption that its former extent has been found inconvenient, and give room to suppose that future experience may discover the propriety and utility of other exceptions. I suspect it to be impossible in the nature of the thing to fix the salutary point at which the operation of the institution ought to stop, and this is with me a strong argument for leaving the matter to the discretion of the legislature.

This is now clearly understood to be the case in Great Britain, and it is equally so in the State of Connecticut; and yet it may be safely affirmed that more numerous encroachments have been made upon the trial by jury in this State since the Revolution, though provided for by a positive article of our constitution, than has happened in the same time either in Connecticut or Great Britain. It may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career. The truth is that the general GENIUS of a government is all that can be substantially relied upon for permanent effects. Particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them; and the want of them will never be, with men of sound discernment, a decisive objection to any plan which exhibits the leading characters of a good government.

It certainly sounds not a little harsh and extraordinary to affirm that there is no security for liberty in a Constitution which expressly establishes the trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact that Connecticut, which has been always regarded as the most popular State in the Union, can boast of no constitutional provision for either.

PUBLIUS.

1. It has been erroneously insinuated. with regard to the court of chancery, that this court generally tries disputed facts by a jury. The truth is, that references to a jury in that court rarely happen, and are in no case necessary but where the validity of a devise of land comes into question.

2. It is true that the principles by which that relief is governed are now reduced to a regular system; but it is not the less true that they are in the main applicable to SPECIAL circumstances, which form exceptions to general rules.

3. Vide No. 81, in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the Supreme Court, is examined and refuted.

Section 1.

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.
The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Passed by Congress February 20, 1933. Ratified December 5, 1933.

Section 1.

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

Passed by Congress March 21, 1947. Ratified February 27, 1951.

 

Section 1.

The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2.
The Congress shall have power to enforce this article by appropriate legislation.

Passed by Congress June 16, 1960. Ratified March 29, 1961.

 

 

 

Section 1.

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

Section 2.
The Congress shall have power to enforce this article by appropriate legislation.

Passed by Congress August 27, 1962. Ratified January 23, 1964.

Section 1.

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Passed by Congress July 6, 1965. Ratified February 10, 1967.

Note: Article II, section 1, of the Constitution was affected by the 25th amendment.

Section 1.

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2.
The Congress shall have power to enforce this article by appropriate legislation.

Passed by Congress March 23, 1971. Ratified July 1, 1971.

Note: Amendment 14, section 2, of the Constitution was modified by section 1 of the 26th amendment.

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

Originally proposed Sept. 25, 1789. Ratified May 7, 1992.

 

Certain General and Miscellaneous Objections to the Constitution Considered and Answered
From McLEAN’S Edition, New York.

Author: Alexander Hamilton

To the People of the State of New York:

IN THE course of the foregoing review of the Constitution, I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper.

The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the States are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured.

To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions.

Independent of those which relate to the structure of the government, we find the following: Article 1, section 3, clause 7 “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law.” Section 9, of the same article, clause 2 “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Clause 3 “No bill of attainder or ex-post-facto law shall be passed.” Clause 7 “No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.” Article 3, section 2, clause 3 “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.” Section 3, of the same article “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.” And clause 3, of the same section “The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.” It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, [1] in reference to the latter, are well worthy of recital: “To bereave a man of life, Usays he,e or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.” And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls “the BULWARK of the British Constitution.”[2]

Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.

To the second that is, to the pretended establishment of the common and state law by the Constitution, I answer, that they are expressly made subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.” They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself.

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.” Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that “the liberty of the press shall be inviolably preserved”? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. [3] And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.

There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing.

Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: “It is improper Usay the objectorse to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the States to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body.” This argument, if it proves any thing, proves that there ought to be no general government whatever. For the powers which, it seems to be agreed on all hands, ought to be vested in the Union, cannot be safely intrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the State legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? Evidently from the complexion of public measures, from the public prints, from correspondences with theirrepresentatives, and with other persons who reside at the place of their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable distance from the seat of government.

It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the State governments. The executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their State representatives.

It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union.

Among the many curious objections which have appeared against the proposed Constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due TO the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. The newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that “STATES NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE DISCHARGED FROM ANY OF THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF THEIR CIVIL GOVERNMENT.” The last objection of any consequence, which I at present recollect, turns upon the article of expense. If it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan.

The great bulk of the citizens of America are with reason convinced, that Union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government a single body being an unsafe depositary of such ample authorities. In conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which Congress, under the existing Confederation, may be composed. It is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. It is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people.

Whence is the dreaded augmentation of expense to spring? One source indicated, is the multiplication of offices under the new government. Let us examine this a little.

It is evident that the principal departments of the administration under the present government, are the same which will be required under the new. There are now a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury, consisting of three persons, a Treasurer, assistants, clerks, etc. These officers are indispensable under any system, and will suffice under the new as well as the old. As to ambassadors and other ministers and agents in foreign countries, the proposed Constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. It will be in most cases nothing more than an exchange of State for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The States individually will stand in no need of any for this purpose. What difference can it make in point of expense to pay officers of the customs appointed by the State or by the United States? There is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former.

Where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me respects the support of the judges of the United States. I do not add the President, because there is now a president of Congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the President of the United States. The support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. But upon no reasonable plan can it amount to a sum which will be an object of material consequence.

Let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. The first thing which presents itself is that a great part of the business which now keeps Congress sitting through the year will be transacted by the President. Even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the Senate, and subject to their final concurrence. Hence it is evident that a portion of the year will suffice for the session of both the Senate and the House of Representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. The extra business of treaties and appointments may give this extra occupation to the Senate. From this circumstance we may infer that, until the House of Representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future Congress.

But there is another circumstance of great importance in the view of economy. The business of the United States has hitherto occupied the State legislatures, as well as Congress. The latter has made requisitions which the former have had to provide for. Hence it has happened that the sessions of the State legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the States. More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several States amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or fifth of that number. The Congress under the proposed government will do all the business of the United States themselves, without the intervention of the State legislatures, who thenceforth will have only to attend to the affairs of their particular States, and will not have to sit in any proportion as long as they have heretofore done. This difference in the time of the sessions of the State legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system.

The result from these observations is that the sources of additional expense from the establishment of the proposed Constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the Union.

PUBLIUS.

1. Vide Blackstone’s “Commentaries,” vol. 1., p. 136.

2. Vide Blackstone’s “Commentaries,” vol. iv., p. 438.

3. To show that there is a power in the Constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon the publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declarations in the State constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the State legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. The same invasions of it may be effected under the State constitutions which contain those declarations through the means of taxation, as under the proposed Constitution, which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained.

Concluding Remarks
From McLEAN’S Edition, New York.

Author: Alexander Hamilton

To the People of the State of New York:

ACCORDING to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion two points: “the analogy of the proposed government to your own State constitution,” and “the additional security which its adoption will afford to republican government, to liberty, and to property.” But these heads have been so fully anticipated and exhausted in the progress of the work, that it would now scarcely be possible to do any thing more than repeat, in a more dilated form, what has been heretofore said, which the advanced stage of the question, and the time already spent upon it, conspire to forbid.

It is remarkable, that the resemblance of the plan of the convention to the act which organizes the government of this State holds, not less with regard to many of the supposed defects, than to the real excellences of the former. Among the pretended defects are the re-eligibility of the Executive, the want of a council, the omission of a formal bill of rights, the omission of a provision respecting the liberty of the press. These and several others which have been noted in the course of our inquiries are as much chargeable on the existing constitution of this State, as on the one proposed for the Union; and a man must have slender pretensions to consistency, who can rail at the latter for imperfections which he finds no difficulty in excusing in the former. Nor indeed can there be a better proof of the insincerity and affectation of some of the zealous adversaries of the plan of the convention among us, who profess to be the devoted admirers of the government under which they live, than the fury with which they have attacked that plan, for matters in regard to which our own constitution is equally or perhaps more vulnerable.

The additional securities to republican government, to liberty and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the Union will impose on local factions and insurrections, and on the ambition of powerful individuals in single States, who may acquire credit and influence enough, from leaders and favorites, to become the despots of the people; in the diminution of the opportunities to foreign intrigue, which the dissolution of the Confederacy would invite and facilitate; in the prevention of extensive military establishments, which could not fail to grow out of wars between the States in a disunited situation; in the express guaranty of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and in the precautions against the repetition of those practices on the part of the State governments which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost universal prostration of morals.

Thus have I, fellow-citizens, executed the task I had assigned to myself; with what success, your conduct must determine. I trust at least you will admit that I have not failed in the assurance I gave you respecting the spirit with which my endeavors should be conducted. I have addressed myself purely to your judgments, and have studiously avoided those asperities which are too apt to disgrace political disputants of all parties, and which have been not a little provoked by the language and conduct of the opponents of the Constitution. The charge of a conspiracy against the liberties of the people, which has been indiscriminately brought against the advocates of the plan, has something in it too wanton and too malignant, not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. The perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. And the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men. It is not impossible that these circumstances may have occasionally betrayed me into intemperances of expression which I did not intend; it is certain that I have frequently felt a struggle between sensibility and moderation; and if the former has in some instances prevailed, it must be my excuse that it has been neither often nor much.

Let us now pause and ask ourselves whether, in the course of these papers, the proposed Constitution has not been satisfactorily vindicated from the aspersions thrown upon it; and whether it has not been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. Every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. This is a duty from which nothing can give him a dispensation. ‘This is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act. Let him beware of an obstinate adherence to party; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation; and let him remember that a majority of America has already given its sanction to the plan which he is to approve or reject.

I shall not dissemble that I feel an entire confidence in the arguments which recommend the proposed system to your adoption, and that I am unable to discern any real force in those by which it has been opposed. I am persuaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the revolution has produced.

Concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph to its enemies. “Why,” say they, “should we adopt an imperfect thing? Why not amend it and make it perfect before it is irrevocably established?” This may be plausible enough, but it is only plausible. In the first place I remark, that the extent of these concessions has been greatly exaggerated. They have been stated as amounting to an admission that the plan is radically defective, and that without material alterations the rights and the interests of the community cannot be safely confided to it. This, as far as I have understood the meaning of those who make the concessions, is an entire perversion of their sense. No advocate of the measure can be found, who will not declare as his sentiment, that the system, though it may not be perfect in every part, is, upon the whole, a good one; is the best that the present views and circumstances of the country will permit; and is such an one as promises every species of security which a reasonable people can desire.

I answer in the next place, that I should esteem it the extreme of imprudence to prolong the precarious state of our national affairs, and to expose the Union to the jeopardy of successive experiments, in the chimerical pursuit of a perfect plan. I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?

The reasons assigned in an excellent little pamphlet lately published in this city, [1] are unanswerable to show the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded. I will not repeat the arguments there used, as I presume the production itself has had an extensive circulation. It is certainly well worthy the perusal of every friend to his country. There is, however, one point of light in which the subject of amendments still remains to be considered, and in which it has not yet been exhibited to public view. I cannot resolve to conclude without first taking a survey of it in this aspect.

It appears to me susceptible of absolute demonstration, that it will be far more easy to obtain subsequent than previous amendments to the Constitution. The moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each State. To its complete establishment throughout the Union, it will therefore require the concurrence of thirteen States. If, on the contrary, the Constitution proposed should once be ratified by all the States as it stands, alterations in it may at any time be effected by nine [2] States. Here, then, the chances are as thirteen to nine in favor of subsequent amendment, rather than of the original adoption of an entire system.

This is not all. Every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest. We may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. Many of those who form a majority on one question, may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. Hence the necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the compact; and hence, also, an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act. The degree of that multiplication must evidently be in a ratio to the number of particulars and the number of parties.

But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise, in relation to any other point no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place. There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution.

In opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. For my own part I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; and on this account alone, I think there is no weight in the observation just stated. I also think there is little weight in it on another account. The intrinsic difficulty of governing thirteen States at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. But there is yet a further consideration, which proves beyond the possibility of a doubt, that the observation is futile. It is this that the national rulers, whenever nine States concur, will have no option upon the subject. By the fifth article of the plan, the Congress will be obliged “on the application of the legislatures of two thirds of the States (which at present amount to nine), to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof.” The words of this article are peremptory. The Congress “shall call a convention.” Nothing in this particular is left to the discretion of that body. And of consequence, all the declamation about the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.

If the foregoing argument is a fallacy, certain it is that I am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. Those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object.

The zeal for attempts to amend, prior to the establishment of the Constitution, must abate in every man who is ready to accede to the truth of the following observations of a writer equally solid and ingenious: “To balance a large state or society Usays hee, whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they INEVITABLY fall into in their first trials and experiments.” [3] These judicious reflections contain a lesson of moderation to all the sincere lovers of the Union, and ought to put them upon their guard against hazarding anarchy, civil war, a perpetual alienation of the States from each other, and perhaps the military despotism of a victorious demagoguery, in the pursuit of what they are not likely to obtain, but from time and experience. It may be in me a defect of political fortitude, but I acknowledge that I cannot entertain an equal tranquillity with those who affect to treat the dangers of a longer continuance in our present situation as imaginary. A nation, without a national government, is, in my view, an awful spectacle. The establishment of a Constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of which I look forward with trembling anxiety. I can reconcile it to no rules of prudence to let go the hold we now have, in so arduous an enterprise, upon seven out of the thirteen States, and after having passed over so considerable a part of the ground, to recommence the course. I dread the more the consequences of new attempts, because I know that powerful individuals, in this and in other States, are enemies to a general national government in every possible shape.

PUBLIUS.

1. Entitled “An Address to the People of the State of New York.”

2. It may rather be said TEN, for though two thirds may set on foot the measure, three fourths must ratify.

3. Hume’s “Essays,” vol. i., page 128: “The Rise of Arts and Sciences.”

Check out the image gallery from the Dallas, Texas Premiere on July 26th

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Stamford Student Wins National Competition For Original Song

Annie Nirschel, 17, won the “Constituting America” Best Song by a High School Student award. Nirschel has been singing since she was 7. Her first performance was singing the “The Star-Spangled Banner” at a Bridgeport Bluefish game. She sang in front of more than 15,000 people at Battery Park in Manhattan for the Juvenile Diabetes Research Foundation and for more than a million people at the 2011 “Salute to Israel” parade, also in Manhattan.

Nirschel performed the award-winning song, “I Am Me,” at State Cinema in Stamford on Monday. Constituting America is a nonprofit organization founded in 2010 with the mission of utilizing culture, film, television and music to educate Americans about the importance of the U.S. Constitution.

Read more: http://foxct.com/2013/06/11/stamford-student-wins-national-competition-for-original-song/#ixzz2Yrlzxdd9

 

Check out the image gallery from the Stamford, Connecticut Premiere on June 10

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Guest Essayist: The Honorable John Boehner, 53rd Speaker of the U.S. House of Representatives

The backdrop for President Reagan’s inaugural on January 20, 1981 was unforgettable. The United States had endured a decade of decline in our economy at home and our prestige abroad. Some Americans feared our best days were behind us as they had struggled through years of staggeringly high inflation, persistent unemployment, and shrinking incomes. The gears of American industry were slowed by an ever-expanding barrage of high-handed bureaucracies and policies established by administrations dating back to the New Deal.

But on that cold January day, a special man and a big moment came together. In his inaugural address the new president offered a new direction, but one based on the clear, foundational principles of the U.S. Constitution.

In the address, Reagan described the nation’s severe economic challenges, what he called “this present crisis,” as well as his administration’s objective – “a healthy, vigorous, growing economy.” He then used some of the sharpest language of any modern president to underscore the Constitution’s spirit of limited power guided by the people’s approval. “We are a nation that has a government, not the other way around,” he said. “Our government has no power except that granted it by the people. It is time to check and reverse the growth of government which shows signs of having grown beyond the consent of the governed.”

At the time of this address, I was a young, small businessman in the plastics and packaging industry. Like many Americans, I was dealing with the effects of out-of-control taxation and regulation. To me, government was killing the goose that laid the golden egg.

To this day, the simplicity of Reagan’s speech and his strong admonitions guides my work in the House of Representatives. He wanted government “to stand by our side, not ride on our back.” He established as “first priorities” the reawakening of America’s manufacturing base and the reduction of punitive taxes.

The latter goal was accomplished seven months after his inauguration and five months after an assassination attempt. On August 13, 1981, President Reagan signed the Kemp-Roth tax cuts, which slashed tax rates for individuals and businesses, rates which had grown to as high as 70 percent. These tax cuts and other initiatives during Reagan’s two terms led to an economic resurgence.

During the 1980s the economy grew by one-third. Seventeen million new workers were working longer hours per day. Household incomes rose. Unemployment dipped to the 5 percent range. Productivity and manufacturing surged, as did the savings rate. Inflation, once at double-digit levels, stabilized and decreased significantly. And interest rates, which had climbed to more than 18 percent in 1981, steadily fell during the Reagan era. It was, as described in the famous 1984 campaign ad, “morning in America.”

But this economic rebound grew from a clear recognition that federal power is constitutionally limited and that ultimately the people make the wisest economic decisions, not bureaucracies in Washington. President Reagan faced his administration’s challenges with this basic truth in mind. His first inaugural address made a transformational impact still remembered” and relevant” today as our nation faces big government power grabs such as ObamaCare.

If America’s long tradition of enlightened self-government is to survive, the people must not only be acquainted with our founding documents; they must also understand the thinking that produced them. The Constitution is not only the starting point of the American republic, as President Reagan made clear; it is the culmination of several centuries of serious thinking about the role of individuals in relation to each other and the Creator, and the most helpful way for each of us to secure our God-given liberties. I want to thank Janine Turner and Cathy Gillespie. I am humbled by their invitation to appear as a guest essayist. Let me also thank everyone at Constituting America for their hard work to, as they put it, “make the Constitution cool” for kids and adults and accurately teach the history of our great nation.

Read Ronald Reagan’s First Inaugural Speech here.

The Honorable John Boehner represents the 8th Congressional District of Ohio, and is serving in the 113th Congress as the 53rd Speaker of the U.S. House of Representatives.

Breaking with historical precedent, Reagan’s first inauguration was held on the Capitol’s West Front, allowing him to refer in his speech to the presidential memorials and to Arlington National Cemetery in the distance. The first post-New Deal president to challenge the principles of the New Deal, Reagan presents his opposition in terms of reviving the idea of consent of the governed.

January 20, 1981

Senator Hatfield, Mr. Chief Justice, Mr. President, Vice President Bush, Vice President Mondale, Senator Baker, Speaker O’Neill, Reverend Moomaw, and My Fellow Citizens:

To a few of us here today, this is a solemn and most momentous occasion; and yet, in the history of our nation, it is a commonplace occurrence. The orderly transfer of authority as called for in the Constitution routinely takes place as it has for almost two centuries and few of us stop to think how unique we really are. In the eyes of many in the world, this every-four-year ceremony we accept as normal is nothing less than a miracle. Read more

Guest Essayist: The Honorable Jim Miller, President Reagan's Chairman of the Federal Trade Commission, Director of the Office of Management and Budget, and Member of his Cabinet

It’s all there!  That was my reaction when I reread Ronald Reagan’s “A Time for Choosing” – commonly known as “The Speech” – toward the end of the President’s second term.  Presidential assistant Martin Anderson had compiled Reagan’s various campaign speeches and policy papers, so the President’s positions on the issues were readily available.  But nothing summarized the Reagan message quite so succinctly and boldly as The Speech.

Reagan’s view of the world evolved during the two decades following World War II, first as president of the Hollywood Screen Actors Guild, where he came to see international communism as the greatest evil in the world, and later, in the late 1950s and early 1960s as a roving ambassador for the General Electric Company in connection with his hosting of the GE Theater on TV.  In his ambassadorial role, Reagan made hundreds of appearances before GE’s employees, customers, and public-spirited organizations at GE locations throughout the country.  Reagan used this period to research public policy, to formulate a coherent philosophy, and to hone his presentations.

The Speech reflects Reagan’s development of extraordinary communications skills, but also his transformation from liberal to conservative.  It was given on behalf of Senator Barry Goldwater’s campaign for president late in the contest – October 27, 1964.  It electrified the nationwide TV audience and brought Goldwater a needed boost in public appeal and donations.  Although Goldwater lost to President Johnson, The Speech launched Reagan to local and national prominence, as two years later he won the governorship of California in a landside, and eventually the presidency by a similar margin.

Just what do we see in The Speech?  First, it is compact and beautifully written.  This is not surprising, as Reagan had given versions of the text many times before.  Second, it addresses controversy head-on (“I am going to talk of controversial things.  I make no apology for this.”).  Reagan was not one to sugar-coat things.  Third, The Speech calls upon us to recognize American exceptionalism – that we have a very special place in history and are the bulwark to freedom in the world.

Reagan asks us to look past ideological differences and to avoid name-calling.  He says the choice is not between “left” and “right,” but only between “up” and “down.”  “Up” he characterizes as maximum individual freedom consistent with law and order, whereas “down” means the “ant heap of totalitarianism.”  Accordingly, Reagan weighs in against the notion that government can solve all problems and still preserve individual liberties.  “[Y]ou can’t control the economy without controlling people,” he warns.  The choice, he says, is that we “accept the responsibility for our own destiny, or we….confess that [government] can plan our lives for us better than we can plan them ourselves.”  Years later, Reagan would put this more bluntly: “Government is not the solution to our problem; government is the problem.”

There’s a note of urgency in The Speech, which applies today as well. “Already the hour is late.  Government has laid its hand on health, housing, farming, industry, commerce, education, and, to an ever-increasing degree, interferes with the people’s right to know….Because no government every voluntarily reduces itself in size, government programs once launched never go out of existence.  A government agency is the nearest thing to eternal life we’ll ever see on this earth.”

The Speech soars at the end in quintessential Reagan style: “You and I have a rendezvous with destiny.  We can preserve for our children this, the last best hope of man on earth, or we can sentence them to take the first step into a thousand years of darkness.  If we fail, at least let our children and our children’s children say of us we justified our brief moment here.  We did all that could be done.”

Jim Miller served President Reagan as Chairman of the Federal Trade Commission (1981-1985) and as Director of the Office of Management and Budget and Member of his Cabinet (1985-1988).

Thursday, June 20, 2013 – Essay #89 

 

In this nationally televised speech in support of Barry Goldwater, the 1964 Republican Party presidential candidate, Reagan challenges the Progressive principles behind President Johnson’s Great Society. The speech propelled Reagan to national prominence.

October 27, 1964

I am going to talk of controversial things. I make no apology for this. I have been talking on this subject for ten years, obviously under the administration of both parties. I mention this only because it seems impossible to legitimately Read more

Guest Essayist: David J. Bobb, Director, Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, Hillsdale College, Washington, D.C.

“Commencement Address at Howard University”

Lyndon B. Johnson

At the end of the United States Civil War, a century before President Lyndon B. Johnson’s 1965 Commencement Address at Howard University, the ex-slave turned American orator and statesman Frederick Douglass concluded that the best thing the federal government could do for Americans of African descent was to leave them alone. Read more

In this commencement address, President Johnson calls for a redefinition of equality.

June 4, 1965

Dr. Nabrit, my fellow Americans:

I am delighted at the chance to speak at this important and this historic institution. Howard has long been an outstanding center for the education of Negro Americans. Its students are of every race and color and they come from many countries of the world. It is truly a working example of democratic excellence. Read more

Guest Essayist: J. Eric Wise, Partner at Gibson Dunn & Crutcher LLP, New York City

The Great Society Speech

President Lyndon Johnson delivered the Great Society speech at the University of Michigan in May of 1964. Superficially, the Great Society speech is a typical modern speech, an agenda of platitudinous and pragmatic goals. More deeply, the Great Society speech represents a dramatic rhetorical reorientation of the United States.

Ambitious American political speeches invoke the founding. And the Great Society Speech is no exception, alluding to the Declaration of Independence. The Declaration of Independence sets forth both the basis Read more

In this commencement address, President Johnson introduces his Progressive idea of a “Great Society.”

May 22, 1964

President Hatcher, Governor Romney, Senators McNamara and Hart, Congressmen Meader and Staebler, and other members of the fine Michigan delegation, members of the graduating class, my fellow Americans:

It is a great pleasure to be here today. This university has been coeducational since 1870, Read more

Guest Essayist: Tony Williams, Program Director of the Washington-Jefferson-Madison Institute

John F. Kennedy, “Commencement Address at Yale University”

Throughout the twentieth century, one of the most fundamental tenets of progressive ideology was what many historians called the “gospel of efficiency” that found salvation in scientific rather than republican government. Progressives believed that democratic, partisan politics based upon representative government was often corrupt but always too messy. The people were too uninformed, the Progressives believed, and political compromise did not always result in the “best solutions.”

The Progressives thought that they had a much better alternative. They believed that if policymaking were removed from the hands of the sovereign people and their representatives and placed in the hands of the academic experts in executive agencies, then scientific government could rationalize all areas of American life to bring order and efficiency out of democratic chaos. The gospel of efficiency became indisputable truth and worshipped as a creed by those who simply knew better than ordinary people.

The result of this for progressive liberals has been to believe arrogantly that they are acting scientifically and rationally while conservatives rest their arguments on platitudes and slogans. This was recently seen in the debate over gun control in the wake of several tragic mass shootings. The supporters of increased gun control described their reforms as “reasonable,” “common sense,” or “moderate,” implying that anyone who opposed them were irrational extremists. Progressives after all were academic experts – they simply knew better than everyone else, who should simply passively accept the policies handed down to them.

President John F. Kennedy clearly expressed his belief in the kind of progressive ideals described above. His 1962 Commencement Address at Yale University reads like a Progressive manifesto on the superiority of progressive over consensual government.

After some amusing digs at Yale from a Harvard Man, Kennedy tells the graduates that the central domestic issues of his administration were not based upon “basic clashes of philosophy or ideology but to ways and means of reaching common goals – to research for sophisticated solutions to complex and obstinate issues.” Kennedy explains some of the hidden meaning behind his statement. The Republicans and conservatives, though without naming them, rest their arguments on “myths,” “clichés,” “repetition of stale phrases,” “illusions,” and “platitudes.” Instead, Kennedy offers a post-partisan, progressive solution. “We need not partisan wrangling, but common concentration on common problems,” he explains to his audience. If the Republicans would simply accepted Kennedy’s ideas about government, then there wouldn’t be a problem.

He uses the occasion to shatter three prevailing illusions that “prevent effective action.” The first myth is that government is too large and that government is bad. He seeks to demolish this myth with the argument that the size of the government bureaucracy and federal debt had grown less rapidly than the size of the economy and any other sector of national life. Moreover, he argues that the large size of government “can bring benefits.” For example, even though he proudly states that three out of every four dollars for medical and scientific research comes from the federal government, “American scientists remain second to none in their independence and in their individualism.”

The second myth is that the growing federal debt is a problem. As proof, Kennedy states that although the debt was growing, it was decreasing as per capita and relative to Gross National Product. Additionally, he maintains that the public debt is increasing at a slower pace than private debt or the debt of state governments. If Kennedy can be forgiven for not guessing that our debt would reach a staggering seventeen trillion dollars, he might have foreseen that his support of a much larger government with almost limitless responsibility might contribute mightily to an unsustainable federal debt.

The third myth that Kennedy debunks is that business lacked confidence in his administration leading to stagnation. The president argues instead that confidence is rooted upon institutions – business, labor, and government – all fulfilling their obvious “obligations to the public.” The “solid ground of mutual confidence is the necessary partnership of government with all of the sectors of our society in the steady quest for economic progress.” The national administrative state run by experts necessarily reaches into every aspect of American life to usher in a perfect society not just for the United States but the world. Indeed, he continues, arguing that, “The safety of all the world – the very future of freedom – depends as never before upon the sensible and clearheaded management of the domestic affairs of the United States.”

What is at stake, Kennedy avers, is not contending rival visions of liberals and conservatives who would debate as politicians in a republican system, but the “practical management of a modern economy” by experts who could solve “sophisticated and technical questions.” Political compromise and representative government may have been adequate in a bygone age but the modern era had more subtle challenges for which only “technical answers, not political answers, must be provided.”

Kennedy’s embrace of progressivism traced its lineage back to Woodrow Wilson and the early twentieth century. Kennedy advocates a government based upon the European model when he promotes a government by experts and an increasingly large government that manages society,. Just as Wilson admired the German model and philosophy, Kennedy thinks America should become more like Europe. “The example of Western Europe,” Kennedy explains, “shows that they are capable of solution – that governments . . . prepared to face technical problems without ideological preconceptions, can coordinate the elements of a national economy and bring about growth and prosperity.”

President John F. Kennedy sought to administer government by progressive experts rather than the people. He sought to bring efficiency and order to democratic politics and free enterprise. He sought to impose a European vision of statism on American institutions, and then promised that this was the way to protect and promote freedom. It would supposedly “demonstrate anew to the world the superior vitality and the strength of a free society.” Perhaps we are living with the illusion that one could live freely and enjoy prosperity in a managed society.

Tony Williams is the Program Director of the Washington-Jefferson-Madison Institute in Charlottesville, VA, which teaches teachers American founding principles. Free downloads of its recently published WJMI Guide to the Constitution are available at http://www.thefederalistpapers.org/ebooks/jefferson-and-madisons-guide-to-the-constitution. He is the author of four books including American Beginnings: The Dramatic Events that Shaped a Nation’s Character.

 

President Kennedy’s New Frontier policies were consistent with the policies of his Progressive predecessors. Current problems, he suggests in this speech, call for technical expertise rather than old ideas.

June 11, 1962

President Griswold, members of the faculty, graduates and their families, ladies and gentlemen:

Let me begin by expressing my appreciation for the very deep honor that you have conferred upon me. As General de Gaulle occasionally acknowledges America to be the daughter of Europe, so I am pleased to come to Yale, Read more

Guest Essayist: Dr. Roberta Herzberg, Utah State University Department of Political Science

FDR and the Second Bill of Rights

As World War 2 was winding down, Franklin Delano Roosevelt set his sights for the nation on transitioning the newly expanded role of government from the war effort to an expanded social and economic role. FDR called for the guarantees outlined in this address, as he argued that “true individual freedom cannot exist without economic security and independence. “Necessitous men are not free men.” By assuming a role in protecting citizens from the potential problems of their own economic security, government entered an arena in which the citizen operates as a co-producer of the circumstance. Those with the most to gain would seek additional services, while others ignored the pattern of growing government until its scope and size became overwhelming. Read more

As victory in the Second World War looked more and more likely, President Roosevelt turned his attention to postwar America. In this speech he proposes a “second Bill of Rights.”

January 11, 1944

…It is our duty now to begin to lay the plans and determine the strategy for the winning of a lasting peace and the establishment of an American standard of living higher than ever before known. We cannot be content, no matter how high that general standard of living may be, if some fraction of our people–whether it be one-third or one-fifth or one-tenth–is ill-fed, ill-clothed, ill-housed, and insecure. Read more

Guest Essayist: Troy Kickler, Ph.D., Founding Director, North Carolina History Project and editor of www.northcarolinahistory.org

It seems today that many Americans wrongly perceive the Constitution as a roadblock on the way to a better America.  Not too long ago during a dinner conversation, this unfavorable view of the Constitution was expressed to me.  The person had overlooked the enduring qualities of the document–qualities that have allowed freedom to flourish and have kept tyranny in check.

In “What Good’s A Constitution,” former British Prime Minister Winston Churchill reminds readers that the American Constitution has been the “shield of the common man,” and its framework and provisions reveal that a government exists for individuals.  Individuals do not exist for the government.  Churchill wrote the 1936 article in an era in which Fascist dictatorships had emerged in Italy and Germany and Russia’s Communist experiment Read more

Written soon after Franklin Roosevelt’s Democratic Convention Address of 1936, this article by British statesman Winston Churchill points to the wide gulf between Churchill’s and Roosevelt’s economic views, even if five years later they would forge a close wartime alliance. Beyond their differences on economics, Churchill sees the American Constitution as an enduring source of strength for the American republic, not an obstacle to be overcome.

August 22, 1936

No one can think clearly or sensibly about this vast and burning topic without Read more

Guest Essayist: Tony Williams, Program Director of the Washington-Jefferson-Madison Institute

On June 27, 1936, Franklin D. Roosevelt accepted the Democratic nomination for the presidency.  Despite all of the success in getting Congress to pass New Deal legislation during his first administration and his excellent chances for re-election, FDR felt beleaguered.  Republicans in Congress and conservatives such as Herbert Hoover and the Liberty League continued to oppose the legislation he believed would solve the economic crisis and transform America.  Populist radicals such as Huey Long and Charles Townshend went even further than FDR in seeking to provide a guaranteed income for Americans and won some of his support.  Read more

Having launched the New Deal, an ambitious program of political and economic re-engineering aimed at ending the Great Depression, President Roosevelt accepted his party’s nomination to run for a second term. In this speech at the 1936 Democratic Convention, he defends his programs–some of which had been struck down as unconstitutional by the Supreme Court–and tags opponents as “economic royalists.”

June 27, 1936

Senator Robinson, Members of the Democratic Convention, my friends:

Here, and in every community throughout the land, we are met at a time of great moment to the future of the Nation. It is an occasion to be dedicated to the simple and sincere expression of an attitude toward problems, the determination of which will profoundly affect America. Read more

Guest Essayist: Tony Williams, Program Director of the Washington-Jefferson-Madison Institute

In 1932, the Democratic candidate, Franklin Delano Roosevelt, was the privileged scion of a wealthy family who ran a campaign that was committed to the Progressive vision of American society and government from the turn of the century.  In his “Commonwealth Club Address,” FDR embraced the Progressive idea that pitted the “interests” against the people.  He also promised the continued growth of the administrative state managed by enlightened bureaucratic elites in the name of the people.  Even more importantly, FDR maintained that the purpose of government under the social compact was to preserve rights, but he was bold enough to assert that a redefinition of rights was necessary in an industrial age.  Achieving this vision would usher in a secular utopia of progress and equality. Read more

Delivered by Roosevelt to California’s Commonwealth Club during his first run for the White House, this speech was penned by Adolf Berle, a noted scholar and a member of Roosevelt’s “Brain Trust” who drew deeply upon earlier Progressive thought, especially that of John Dewey.

September 23, 1932

…I want to speak not of politics but of Government. I want to speak not of parties, but of universal principles. They are not political, except in that larger sense in which a great American once expressed a definition of politics, that nothing in all of human life is foreign to the science of politics. Read more

Guest Essayist: Charles K. Rowley, Duncan Black Professor Emeritus of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

President Coolidge delivered this speech on the 150th anniversary of the Declaration of Independence.  In this essay, I place President Coolidge’s speech into a relevant perspective first, by outlining two divergent visions about the nature of man and secondly by explaining how these divergent visions culminated in the progressive attack on the essence of the Declaration of Independence. Read more

President Coolidge delivered this speech on the 150th anniversary of the Declaration of Independence. Rejecting Progressivism root and branch, he defends America’s founding principles.

July 5, 1926

We meet to celebrate the birthday of America. The coming of a new life always excites our interest. Although we know in the case of the individual that it has been an infinite repetition reaching back beyond our vision, that only makes it the more wonderful. Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Herbert Croly was perhaps the most important intellectual of Progressivism, which seems odd, given the tortuous language and convoluted emotive passages that characterize his work. Progressive Democracy was not Croly’s most significant book. That was his earlier work, The Promise of American Life, a book that supposedly so influenced Theodore Roosevelt it is said to have provided the catalyst for Roosevelt’s return to politics as a third-party “Bull Moose” presidential candidate in the 1912 election.

Progressive Democracy is of the same style and substance as Croly’s other writings. It rests on the usual Progressive premises, such as the omnipotent, all-caring, and morally perfect Hegelian God-state that is the inevitable evolutionary end of Progressive politics. It reflects the notion—so common in Progressive and other leftist theory—of stages of human social and political development that have been left behind and whose outdated institutions are an impediment to ultimate progress into the promised land. Hence, Croly’s insistence that the Constitution’s structure of representative government and separation and division of powers needed to be, and would be, changed. Read more

In this book, Croly, a leading Progressive theorist and founder of The New Republic magazine, criticizes the Founders’ fear of tyranny of the majority and rejects their idea that government exists to protect individual rights.

1915

Chapter XII: The Advent of Direct Government

…If economic, social, political and technical conditions had remained very much as they were at the end of the eighteenth century, the purely democratic political aspirations might never have obtained the chance of expression. Some form of essentially representative government was at that time apparently the only dependable kind of liberal political organization. It was imposed by the physical and technical conditions under which government had to be conducted. Direct government did not seem to be possible outside of city or tribal states, whose population and area was sufficiently small to permit the actual assemblage of the body politic at some particular place, either at regular intervals or in case of an emergency. Read more

Guest Essayist: James Legee, Graduate, Master of Arts in Political Science at Villanova University, Graduate Fellow at the Matthew J. Ryan Center for the study of Free Institutions and the Public Good

Theodore Roosevelt left the office of the President in 1908, only to be drawn back into politics in 1912, disappointed with his predecessor’s defense of the Progressive cause.  He launched the “Bull Moose” Party with the zeal befitting a man who was photographed actually riding a bull moose.  Roosevelt pursued an agenda in 1912 that called for increasing popular participation in government and eroding the barriers between the people and government.  This is also an intentional blurring of the line between a republican form of government and a direct democracy of the kind that existed in antiquity. Read more

Roosevelt relinquished the presidency in 1908, believing that his Progressive legacy lay safely in the hands of his handpicked successor, William Howard Taft. Although Taft expanded many of Roosevelt’s policies and succeeded in passing through Congress the Sixteenth Amendment, permitting a national income tax, Roosevelt challenged Taft in the 1912 Republican primary. Losing the nomination, he announced an independent candidacy under the banner of the Progressive or “Bull Moose” Party. In this campaign speech, he urges more direct power to the people through recall elections, referenda and initiatives, and direct primaries.

March 20, 1912

The great fundamental issue now before the Republican party and before our people can be stated briefly. It is, Are the American people fit to govern themselves, to rule themselves, to control themselves? I believe they are. My opponents do not. Read more

Guest Essayist: George Landrith, President of Frontiers of Freedom

Woodrow Wilson:  A Failed President

One of the most common ways of judging a president is to simply ask if there was peace and economic prosperity during his time in office? This is a useful analysis, but not entirely complete. The president isn’t the only reason there might be peace or prosperity. Thus, other criteria should be taken into account. What policies did the president pursue? What impact did they have? And how did the president use the power entrusted to him by the American public? By these criteria, Woodrow Wilson was a failed president.

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Writing a year before Congress created the Interstate Commerce Commission, the first independent regulatory agency, Wilson argues in this article that it is only through such agencies–separate from the political process and independent of the electorate–that government can pursue its necessary ends.

November 2, 1886

I suppose that no practical science is ever studied where there is no need to know it. The very fact, therefore, that the eminently practical science of administration is finding its way into college courses in this country would prove that this country needs to know more about administration, were such proof of the fact required to make out a case.  Read more

Guest Essayist: James Legee, Graduate, Master of Arts in Political Science at Villanova University, Graduate Fellow at the Matthew J. Ryan Center for the study of Free Institutions and the Public Good

Theodore Roosevelt was one of the most colorful presidents to serve the Republic.  He was a rancher in the North Dakota Badlands, led the Rough Riders up San Juan Hill and received a Medal of Honor for his gallantry, the only President with such a distinction.  While climbing a Mountain in the Adirondacks of New York in 1901, word reached Vice President Theodore Roosevelt that the condition of President McKinley had rapidly deteriorated after an assassination attempt a week earlier.  The next day, McKinley was dead, and Roosevelt was sworn into office as president.  Roosevelt brought an ideology to the Office of the President that was a refutation of the American Founding, Progressivism.  This ideology included a dramatic expansion of power vested in one person, the president. Read more

Roosevelt’s ascension to the presidency in 1901 upon the assassination of William McKinley marked the emergence of Progressivism on the national scene. From trust busting to railroad regulation, Roosevelt sought to expand federal power over a large swath of the American economy. In this excerpt from his autobiography, he offers a view of the Constitution that is compatible with his Progressive politics.

1913

…The most important factor in getting the right spirit in my Administration, next to the insistence upon courage, honesty, and a genuine democracy of desire to serve the plain people, was my insistence upon the theory that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by the Congress under its Constitutional powers. Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Thomas Woodrow Wilson was dour, humorless, and convinced of the fallen nature of all but the elect few and of the need for strong leaders with proper principles who would provide the discipline and vision for the moral guidance of the weak at home and abroad. Calvinist in appearance, outlook, and family background, he perfectly matched the caricature of a Puritan. Those traits also made him a perfect Progressive.

Wilson was strongly influenced by 19th century German intellectual thought, especially Hegel’s views of the State as the evolutionary path of an Idea through history, and by contemporary adaptations of Darwinian theories to social science. He enthusiastically embraced the nascent ideology of the State. Read more

For Wilson, constitutional checks and balances and the separation of powers are indicative of the flawed thinking of America’s Founders. They are means of limiting government, when the fact is that government alone can provide the people’s needs. Wilson looks to the presidency–the singular voice of the people–as the best hope for overcoming the old order.

1908

It is difficult to describe any single part of a great governmental system without describing the whole of it. Governments are living things and operate as organic wholes.  Moreover, governments have their natural evolution and are one thing in one age, another in another. The makers of the Constitution constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and allow to no single part or organ of it a dominating force; but no government can be successfully conducted upon so mechanical a theory. Read more

Guest Essayist: Tony Williams, Program Director of the Washington-Jefferson-Madison Institute in Charlottesville, VA

Progressivism was a movement in the late nineteenth and early twentieth centuries.  Whatever its different iterations, progressivism was rooted in the belief that the natural rights principles of the American founding were fine for an earlier age but no longer relevant in a mass, industrial society.  The modern age, as the Progressives saw it, was characterized by great inequality and concentrations of wealth.  The “interests” controlled the masses for their own self-interest rather than the public good. Read more

Wilson makes clear in this article the consequences of rejecting the idea of inherent natural rights for the idea that rights are a positive grant from government.

August 22, 1887

Is it possible that in practical America we are becoming sentimentalists? To judge by much of our periodical literature, one would think so. All resolution about great affairs seems now “sicklied o’er with a pale cast of thought.” Our magazine writers smile sadly at the old-time optimism of their country; are themselves full of forebodings; expend much force and enthusiasm and strong (as well as weak) English style in disclosing social evils and economic bugbears; are moved by a fine sympathy for the unfortunate and a fine anger against those who bring wrong upon their fellows: but where amidst all these themes for the conscience is there a theme for the courage of the reader? Where are the brave plans of reform which should follow such prologues? Read more

Guest Essayist: Robert Clinton, Professor and Chair Emeritus, Department of Political Science, Southern Illinois University Carbondale

The elevation of Woodrow Wilson to the presidency of the United States is a defining moment in American history. It signaled the triumph of an ideology destined to transform the United States Constitution from an instrument of limited government to one of consolidation, much as had been feared by0 the Antifederalist Brutus more than a century before. That ideology is known as “progressivism,” the essentials of which are laid out clearly and unapologetically in Wilson’s “What Is Progress?” Included in these essentials are: belief in the perfectibility of human beings and human societies, demonization of the past and devaluation of time-honored traditions, and the worship of science and technology. Read more

After earning a Ph.D. in both history and political science at Johns Hopkins University, Wilson held various academic positions, culminating in the presidency of Princeton University. Throughout this period, he came to see the Constitution as a cumbersome instrument unfit for the government of a large and vibrant nation. This speech, delivered during his successful campaign for president in 1912 and included in a collection of speeches called The New Freedom, puts forward the idea of an evolving, or “living,” constitution.

1913

In that sage and veracious chronicle, “Alice Through the Looking-Glass,” it is recounted how, on a noteworthy occasion, the little heroine is seized by the Red Chess Queen, who races her off at a terrific pace. Read more

Guest Essayist: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Liberty and the Administrative State: Goodnow’s Gambit

Hillsdale’s Reader on the U. S. Constitution begins with Thomas Jefferson and ends with Ronald Reagan. Of the many `contributors’ to the anthology, none is less-remembered today than Frank Goodnow, who never won an election for public office, having spent his career almost entirely in academia.  Unlike John Dewey, another professor, Goodnow wrote no books that have been widely read beyond his own generation. Yet he stands as an important figure in the Progressive movement, particularly with respect to his championing of Progressivism’s most distinctive institutional feature, the administrative state. Read more

Progressive political science was based on the assumption that society could be organized in such a way that social ills would disappear. Goodnow, president of Johns Hopkins University and the first president of the American Political Science Association, helped pioneer the idea that separating politics from administration was the key to progress. In this speech, given at Brown University, he addresses the need to move beyond the ideas of the Founders.

1916

The end of the eighteenth century was marked by the formulation and general acceptance by thinking men in Europe of a political philosophy which laid great emphasis on individual private rights. Read more

Guest Essayist: Tony Williams, Program Director for the Washington-Jefferson-Madison Institute in Charlottesville, VA

We’re No Longer Lockeans Now: John Dewey & the Rise of Modern Liberalism, by Tony Williams

In his 1861 “Cornerstone” speech, Vice-President of the Confederacy, Alexander Stephens argued that Thomas Jefferson and the Founders really meant all humans, including blacks, were created equal in the Declaration of Independence.  He just believed that they were wrong.  John Dewey, in his “Liberalism and Social Action,” does much the same thing.  He largely summarizes the ideas of John Locke correctly and notes his influence on the Founding.  Again, much like Stephens did, he rejects those ideas, this time because of his belief in the new liberalism of the modern Progressive administrative state.  Read more

As a leading Progressive scholar from the 1880s onward, Dewey, who taught mainly at Columbia University, devoted much of his life to redefining the idea of education. His thought was influenced by German philosopher G.W.F. Hegel, and central to it was a denial of objective truth and an embrace of historicism and moral relativism. As such he was critical of the American founding.

1935

1. The History of Liberalism

…The natural beginning of the inquiry in which we are engaged is consideration of the origin and past development of liberalism. It is to this topic that the present chapter is devoted. Read more

Guest Essayist: James Legee, Graduate, Master of Arts in Political Science at Villanova University and Graduate Fellow at the Matthew J. Ryan Center for the study of Free Institutions and the Public Good

From the vantage point on March 4, 1865, President Lincoln saw the approaching end of the war, a most terrible war that exacted a toll on America never before seen and not seen since.  Lincoln’s Second Inaugural address, delivered shortly before the war’s end and his assassination, is a brief summation of the events and looks forward to rebuilding the nation and healing her wounds.  It is a speech, which is perhaps unique to its era, but not solely in the events it addresses or its length.  Rather, can you imagine a modern President speaking in such a way today- making recurring references to the bible and God? Read more

The South’s surrender was a month away when Lincoln delivered his Second Inaugural. Lincoln looks back on the war and ahead to the task of rebuilding the nation. A little over a month later, he was assassinated.

March 4, 1865

Fellow Countrymen:

At this second appearing to take the oath of the presidential office, there is less occasion for an extended address than there was at the first. Then a statement, somewhat in detail, of a course to be pursued, seemed fitting and proper. Now, at the expiration of four years, during which public declarations have been constantly called forth on every point and phase of the great contest which still absorbs the attention, and engrosses the energies of the nation, little that is new could be presented. Read more

Guest Essayist: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

What Is the “New Birth of Freedom”?

 Lincoln came to the Gettysburg field of the dead and spoke of “a new birth of freedom.”  What did he mean by it?

A lot of men killed a lot of other men at Gettysburg during those three days in July of 1863. But that happened more than once in the Civil War: at Antietam, in the Wilderness, at Cold Harbor, and many other places.  People remember those places and those battles, too, but not the way they remember Gettysburg.

Maybe because this was the battle? The one in which the Confederate States of America lost not just a battle but began to lose the war?  But why did they lose this battle and that war? Read more

From July 1 to 3, 1863, 160,000 men from the Union and Confederate armies met at Gettysburg in southern Pennsylvania. It would prove to be the turning point of the war, but with more than 50,000 casualties from both sides it was among the most costly of battles. President Lincoln’s speech, delivered four months later, lasted only two minutes. But it said as much or more about the Civil War than any book written since.

November 19, 1863

Four score and seven years ago our fathers brought forth, on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived, and so dedicated, can long endure. Read more

Scot Faulkner, Former Chief Administrative Officer of the U.S. House of Representatives and currently President of Friends of Harpers Ferry National Historical Park

On January 1, 1863, President Abraham Lincoln’s right hand was trembling.  He had spent the morning shaking hundreds of hands as part of the traditional New Year’s Day greetings at the White House.  He remarked to Secretary of State, William Seward, that, “if my signature wavers they will say I was afraid to sign it.” He then took up his pen and wrote his name firmly on the Emancipation Proclamation.  As Seward co-signed the document, Lincoln mused, “Seward, if I am to be remembered in history at all, it will probably be in connection with this piece of paper”. [1] Read more

The Emancipation Proclamation, issued on September 22, 1862, promised emancipation for slaves residing in the Confederacy, unless the rebellious states returned to the Union by January 1 of the following year. The three-month deadline came and went, and slavery ceased to have legal sanction in much of the South. Although complete emancipation did not occur until the passage of the Thirteenth Amendment in 1865, Lincoln’s actions earned him the nickname “The Great Emancipator.” Read more

Guest Essayist: Horace Cooper, legal commentator, contributor with Constituting America and adjunct fellow with the National Center for Public Policy Research

There has been much discussion about the reach and scope of executive power.  While certainly Presidents Washington and Jefferson provide good lessons about what would be accepted practice from an executive, perhaps no other President besides Lincoln gives as extensive a model of executive authority.

To start, President Lincoln responded to the April attack on Ft Sumter and the growing secessionist movement by putting executive power front and center.  The Civil War started during the Congressional recess and President Lincoln would prosecute the North’s response for nearly 3 months before calling Congress Read more

On April 12, 1861, a Confederate commander informed the Union forces stationed at Fort Sumter, in the Charleston harbor, of his plans to attack. The Civil War began an hour later. President Lincoln immediately called for 75,000 volunteers. Four states from the upper South seceded over the following month. With Congress out of session, Lincoln led the military effort without congressional approval for nearly three months. In this speech to Congress, which convened on Independence Day, he depicts the Confederacy as a section of the Union in insurrection rather than a foreign nation requiring a declaration of war. Read more

Guest Essayist: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Abraham Lincoln won the presidency in the election of 1860, defeating three other candidates, including two Democrats, with nearly forty percent of the popular vote and an absolute majority in the Electoral College.  Democrats had split into two factions. Northern Democrats, headed by Illinois Senator Stephen Douglas (who had defeated Lincoln in the Senate election two years earlier) held that the question of admitting slavery into the western territories should be answered by referendum in each territory. Southern Democrats, headed by Senator John J. Breckinridge of Kentucky, upheld the claim most famously enunciated decades earlier by Senator John C. Calhoun of South Carolina–namely, that property in slaves is an unalienable right, that slavery was “a positive good” for both white masters and black slaves, and that slave owners therefore could keep their slaves wherever in the territories they pleased.  Popular sovereignty might not protect, and surely did not posit a natural or absolute legal right to slave property, and could never satisfy the slave owners. Although Douglas won the nomination of the regular Democratic organization, he won only a single state in the national election: Missouri. The southern Democrats (who had `seceded’ from the party’s convention before the final vote was taken) won ten states, all of them by overwhelming margins. Read more

Lincoln’s First Inaugural Address, delivered a month after the formation of the Confederacy, served as a final plea for Americans to reunite. Lincoln makes clear that he has no intention to change the status of slavery in the states where it exists, having no constitutional authority to do so. He makes equally clear that secession is not a constitutional option.

March 4, 1861

Fellow citizens of the United States:

In compliance with a custom as old as the government itself, I appear before you to address you briefly, and to take, in your presence, the oath prescribed by the Constitution of the United States, to be taken by the President “before he enters on the execution of his office.” Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

In 1830, at a dinner on the anniversary of Jefferson’s birthday, an exchange of toasts occurred between President Andrew Jackson and Vice-President John Calhoun. Jackson’s challenge, “Our Federal Union—it must be preserved!” was returned with another from Calhoun, “The Union—next to our liberty, the most dear.” The rhetorical volleys crystallized the fundamentally different views of the combatants during the later secession crisis, not only on the nature of the Union, but on the very values each thought paramount. Read more

Most Southern members of Congress followed their states into secession. In this farewell speech, Senator Davis expresses admiration for the late Senator John C. Calhoun, author of the nullification doctrine, and surprisingly invokes the Declaration of Independence in his cause.

January 21, 1861

I rise, Mr. President, for the purpose of announcing to the Senate that I have satisfactory evidence that the State of Mississippi, by a solemn ordinance of her people in convention assembled, has declared her separation from the United States. Read more

Guest Essayist: David Eastman, Claremont Institute Abraham Lincoln Fellow

On March 4th 1861, Abraham Lincoln was inaugurated as president.  One week later, The Constitution of the Confederate States of America was adopted by the Constitutional Convention in Montgomery, Alabama.2  Midway into the ratification process, on March 21st, provisionally elected Vice President of the Confederate States, Alexander Stephens, mounted the stage of the Athenaeum Theatre in Savannah and delivered what has come to be known as the Cornerstone Speech.  Read more

Former Senator Jefferson Davis became president of the Confederate government, while former Georgia Congressman Alexander Stephens became vice president. Three weeks after Abraham Lincoln’s inauguration, Stephens delivered this speech in Savannah, identifying the cornerstone of the Confederacy as an idea opposite to the equality principle of the American founding.

March 21, 1861

At half past seven o’clock on Thursday evening, the largest audience ever assembled at the Athenaeum was in the house, waiting most impatiently for the appearance of the orator of the evening, Read more

Guest Essayist: Horace Cooper, legal commentator and a fellow with Constituting America as well as an adjunct fellow with the National Center for Public Policy Research

On December 20, 1860 South Carolina became the first state to declare that it had seceded from the Federal union.  Many modern historical revisionists will try to explain away slavery’s role in the secessionist movement and the civil war, that followed.  For these individuals it is critical that the conflicts that led to the Civil War involve issues such as tariffs and other domestic policies over which reasonable men might disagree.

Curiously the South Carolina Declaration fails to mention these  issues.   Read more

In December 1860, South Carolina announced its departure from the United States of America, citing Abraham Lincoln’s election as a primary cause. Six states quickly followed South Carolina’s lead, and on February 4, 1861, they banded together to form the Confederate States of America.

December 24, 1860 Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

American politics in the 1850s were dominated by the polarization over slavery, which was reflected in the increasingly menacing tone of the national political “conversation” and the retreat into starker sectionalism of political allegiances. Attempts at political compromise over this national sickness initially appeared promising, but ultimately provided only bandages, not cures. When politics failed, the doctors of the law on the Supreme Court stepped in with a massive dose of controversial and untried constitutional medicine in the Dred Scott decision. When that, too, failed, the only means left to stop the spread of the poison was through the extreme surgery of military conflict that cost the blood of over 600,000 Americans. The South wanted amputation of what it saw as the source of the poison—the North’s crusade of political domination. The North rejected amputation and wanted to save the whole patient through radical surgery to cut out the evil—Southern slavery. Read more

A month before this speech, the Democratic National Convention had convened in Charleston, South Carolina. When the delegates failed to adopt an explicitly pro-slavery platform, the Convention dissolved. Rival Southern and Northern Conventions reconvened in June 1860, each nominating their own presidential candidate: Stephen Douglas for the North and John Breckinridge for the South. With the Democratic vote thus divided, the Republican candidate was widely expected to win the 1860 election. Here Davis laments the Kansas-Nebraska solution, explaining how Douglas, once a Southern hero, had become a villain.

May 17, 1860

…It is this confusion of ideas, it is this confounding of terms, this changing of language, this applying of special meanings to words, out of which, I think, a large portion of the dispute arises. Read more

Guest Essayist: James Legee, Graduate Fellow at the Matthew J. Ryan Center for the study of Free Institutions and the Public Good, Villanova University

Senator Jefferson Davis’ response to William Seward’s State of the Country Speech was effectively a political speech- it was not meant to fully articulate the Southern cause of State’s Rights, nor was it a long-winded justification of that “peculiar institution,” slavery.  Rather, Davis’ goal was to respond to Seward’s earlier speech, which condemned slavery.  Within Davis’ speech, though, we find an idea more dangerous and pernicious than slavery as a positive good or that a State has rights; Davis rejected the central principle of the American Founding and Declaration of Independence, 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.”  Read more

The Senate of 1860 looked little like the Senate of 1790, its proceedings having degenerated into unbridled partisanship. Several years before this debate, South Carolina Congressman Preston Brooks savagely beat Massachusetts Senator Charles Sumner following anti-slavery remarks on the Senate floor. The South had few defenders more tenacious than Mississippi’s Senator Jefferson Davis. He had opposed the Compromise of 1850 and hoped for the annexation of much of northern Mexico, which he believed a natural place to expand Southern interests. Here, in response to New York Senator William Seward, Davis makes clear that, like John C. Calhoun, he rejects the equality principle of the Declaration. Read more

Guest Essayist: Brenda Hafera, Finance and Events Co-Ordinator at the Matthew J. Ryan Center For the Study of Free Institutions and the Public Good at Villanova University

“No former effort in the line of speech-making had cost Lincoln so much time and thought as this one.”  Considering the nuances and rhetoric of Lincoln’s speeches in the Lincoln-Douglas debates, it is perhaps shocking that law partner William Herndon was referring to the Cooper Union Address.  Lincoln meticulously poured over dusty parchment for several months in preparation for this speech.  His painstaking research included the examination of six volumes of Debates on the Federal Constitution by Elliott, the official records of the proceedings of Congress, the Congressional Globe, American history books, and other sources.  He traced the actual legislative votes of thirty-nine of the Constitution’s signers to determine how they later acted on the question of slavery to prove that the Founders did indeed intend for slavery to become extinct. Read more

With an eye to the Republican presidential nomination of 1860, Lincoln campaigned vigorously across the North. Responding to Stephen Douglas’s “Dividing Line” speech, he used this address to claim the mantle of America’s Founders for the Republican Party. Employing original research on the anti-slavery views of “our fathers,” Lincoln cast himself as a conservative. The speech caught the attention of the Eastern political establishment, while at the same time distinguishing him from the radical abolitionists.

February 27, 1860

…But enough! Let all who believe that “our fathers, who framed the Government under which we live, understood this question just as well, and even better, than we do now,” speak as they spoke, and act as they acted upon it.  Read more

Guest Essayist: Tony Williams, Program Director for the Washington-Jefferson-Madison Institute

1859 was an ominous year for America as civil war between the sections threatened despite the attempts to avert it.  Back in 1854, Stephen Douglas had tried to quell sectionalism with the Kansas-Nebraska Act that would grant the seeming American principle of popular sovereignty regarding slavery in the territories, but Kansas became “bleeding Kansas” as a shooting war between pro and anti-slavery forces erupted after they flooded the state to institute their vision of popular sovereignty.  In 1857, Chief Justice Roger B. Taney injected the Court into the political question and tried to help prevent civil war with the Dred Scott opinion, Read more

In September 1857, pro-slavery forces in Kansas drafted the Lecompton Constitution. Their anti-slavery opponents declared the document invalid, as they had not participated in its creation. Adhering to the principle of popular sovereignty, Douglas rejected the Lecompton Constitution and called for Kansans to draft a new document. Northern Democrats, dismayed by the armed conflict in Kansas, supported his position; Southern Democrats looked on it as an act of betrayal. Douglas took every opportunity to explain his position in hopes of re-unifying his party. This speech was published in Harper’s New Monthly Magazine. Read more

Guest Essayist: Charles K. Rowley, Duncan Black Professor Emeritus of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

The State of Nature has a Law of Nature to govern it, which obliges everyone: And Reason, which is the Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions

John Locke, Second Treatise of Government. 1690

        “We hold these truths to be self-evident, that all men are created equal, Read more

Lincoln and Douglas agreed to debate in all nine of the state’s congressional districts, with their recent speeches in Chicago and Springfield counting as the opening salvos. Seven debates ensued, each lasting three hours. This seventh and last debate, held in Alton, drew more than 5,000 spectators. Local and national papers–most in the service of one of the two main parties–reprinted each speech, leading to widespread circulation. After the debates concluded, Lincoln published an edited version. The book’s popularity throughout the North paved the way for his eventual presidential campaign. Read more

Guest Essayist: Tony Williams, Program Director for the Washington-Jefferson-Madison Institute

In his “House Divided” speech, Abraham Lincoln contested the “popular sovereignty” doctrine of Stephen Douglas by stating “a house divided against itself cannot stand.”  His opponent for the Illinois senate seat, Douglas, nicknamed the “Little Giant,” answered Lincoln’s charges a few weeks later in a speech in Chicago.  Douglas adamantly defended the principle of popular sovereignty and revealed his understanding of the principles of the Declaration of Independence.

Read more

As the primary author of the Kansas-Nebraska Act and the most vocal defender of the Dred Scott decision, Douglas traveled extensively promoting the concept of popular sovereignty, which he equated with republican self-government. The national reputation he garnered in the process would, he hoped, serve him well in a future presidential bid. Read more

Guest Essayist: Tony Williams, Program Director for the Washington-Jefferson-Madison Institute

On June 16, 1858, Abraham Lincoln won the Republican nomination for the vacant U.S. Senate seat from Illinois.  His opponent in the election would be Stephen Douglas.  Upon his nomination, Lincoln delivered the “House Divided” speech in the war of words of what would culminate in the Lincoln-Douglas debates later that year. Read more

Lincoln delivered this speech upon his nomination as the Republican candidate for the U.S. Senate in Illinois, where he would square off against incumbent Senator Stephen Douglas. Drawing the leading metaphor from a passage in the Gospel of Matthew, Lincoln held that pro-slavery forces–Douglas, Franklin Pierce (president when the Kansas-Nebraska Act was adopted), Roger Taney, and James Buchanan (president when Dred Scott was decided)–were working in concert to effect a national policy legalizing slavery in all states and territories. Papers throughout the North reprinted the text of the speech, propelling Lincoln to new prominence. Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Abraham Lincoln’s speech on the Dred Scott Case reveals the complex nature of his views on slavery and racial equality, complexity that reflected the divided national psyche. Many Americans in the broad middle rejected the Southern defense of slavery and believed that the “peculiar institution” violated basic human rights and the fundamental equality of life, liberty, and the pursuit of happiness promised to all in the Declaration of Independence. Read more

Lincoln argues that Chief Justice Taney’s opinion in Dred Scott v. Sandford violated America’s founding principles and rewrote American history.

June 26, 1857

…And now as to the Dred Scott decision. That decision declares two propositions–first, that a negro cannot sue in the U.S. Courts; and secondly, that Congress cannot prohibit slavery in the Territories. It was made by a divided court–dividing differently on the different points. Read more

Guest Essayist: Jeffrey Reed, former Constitutional Law Professor, Western Kentucky University, Bowling Green, Kentucky

On March 6, 1857, the United States Supreme Court handed down a ruling that would forever tarnish its reputation and that would help ignite the fires that led to the Civil War. That decision, Dred Scott v. Sandford, 60 U.S. 393 (1857), held that African-Americans were not United States citizens and that the federal government had no power to regulate slavery in territories acquired after the creation of the United States.

The facts leading to the decision are a bit convoluted, but necessary to understand the case. Dred Scott was born a slave in Virginia. Read more

Like Stephen Douglas, Supreme Court Chief Justice Taney believed that his response to the slavery controversy would resolve the issue. His ruling in Dred Scott v. Sandford had the opposite result, throwing the country into even greater turmoil. The case was brought by a slave, Dred Scott, who was taken by his master into territory in which slavery was illegal. Asked to rule simply on whether Scott’s residency in a free territory meant that he should be granted freedom, the Court ruled that Congress had no power to regulate slavery in the territories and that persons of African descent could not be citizens, rendering both the Missouri Compromise and the Compromise of 1850 unconstitutional. Read more

Guest Essayist: Scot Faulkner, Former Chief Administrative Officer of the U.S. House of Representatives

The Republican Party Platform of 1856 is the most important political platform in American history.  It coalesced diverse factions into a new political movement that would dominate American politics for the next 76 years, winning 14 of the next 19 Presidential elections.  It also signaled the end of 36 years of political obfuscation on the issue of slavery in America, ultimately leading to the Civil War.  The Republican Party Platform of 1856, more than any other platform in American history, was designed to codify a new political philosophy and to solidify a coalition of highly fractious political forces into a cogent and compelling movement. Read more

Northern anger toward the Kansas-Nebraska Act reached its zenith in the late spring of 1854, when various anti-slavery forces coalesced in Jackson, Michigan. Organized around the principles of the Declaration of Independence, the Republican Party was born out of this meeting. It would adopt a platform two years later that called for repeal of the Kansas-Nebraska Act and restoration of the Missouri Compromise. Read more

Guest Essayist: Frank M. Reilly, partner at the law firm of Potts & Reilly, L.L.P., Horseshoe Bay, Texas

In 1820, the U.S. Congress passed the Missouri Compromise in an effort to settle disagreements between pro and anti-slavery factions regarding the admission of new states to the union.  The Missouri Compromise prohibited slavery in new states north of the 36°30ˈ north parallel, with the exception of Missouri.  In 1854, Senator Stephen A. Douglas of Illinois proposed, and succeeded in passing, the Kansas-Nebraska Act, which unraveled the Missouri Compromise.  The Kansas-Nebraska Act, signed into law by President Franklin Pierce on May 30, 1854, allowed citizens within the Kansas and Nebraska territories to decide by what they called “Popular Sovereignty” (a popular vote) as to whether they would allow slavery. Read more

Supporters of the Compromise of 1850 lauded it as a continuation of the Missouri Compromise, which had helped maintain peace for thirty years. But four years later, the Missouri Compromise was eviscerated by the Kansas-Nebraska Act. Authored by Democratic Senator Stephen Douglas, it was in fact two provisions, one providing for the territory of Nebraska and the other for the new territory of Kansas. Breaking with the Missouri Compromise’s ban on slavery in this part of the country, it established the policy of “popular sovereignty”: Slavery would be voted on by the citizens of each territory, and made legal or illegal according to the will of the majority. For Lincoln, this policy struck at the very heart of free government. Read more

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Chattel slavery in the United States, because of its manifest injustice, was always morally tenuous. As opposition to slavery grew in the United States in the early Nineteenth Century, the states in which slavery was allowed adopted more and more draconian policies to prop up the institution. An example is the Alabama Slave Code of 1852.

Such codes help us understand the meaning and intent of the Fourteenth Amendment enacted after the Civil War to guarantee full citizenship to freed slaves and to end the practice of extending (or, more properly, denying) constitutional protection by race.

The 1852 slave code is virtually an anti-Bill of Rights. Read more

Growth in the slave population and threats from abolitionists led Southern states to adopt new slave codes in the mid-nineteenth century. Alabama’s revised code, adopted in 1852 and in effect until the end of the Civil War, built on a previous code from 1833.

1852

Chapter III. Patrols.

§983. All white male owners of slaves, below the age of sixty years, and all other free white persons, between the ages of eighteen and forty-five years, who are not disabled by sickness or bodily infirmity, except commissioned officers in the militia, and persons exempt by law from the performance of militia duty, are subject to perform patrol duty…. Read more

Guest Essayist: Logan Beirne, Olin Scholar at Yale Law School and author of Blood of Tyrants: George Washington & the Forging of the Presidency

In this speech, U.S. Senator Daniel Webster strives to unify a deeply divided nation. Speaking “not as a Massachusetts man, nor as a Northern man, but as an American,” he pleads “for the preservation of the Union.”

He begins with a conciliatory tone in which he tries to view the issue of slavery from both perspectives. Careful not to scold the South for the practice, he argues that the fight stems from a “difference of opinion” among equally religious men. His concern is that neither side is convincing the other and the people are merely diverging in their views. Because this is a religious debate, he believes, people are apt to “think that nothing is good but what is perfect, and that there are no compromises or modifications to be made in consideration of difference of opinion.” Read more

Webster began representing Massachusetts in the U.S. Senate in 1813, and by the 1830s had attained a national reputation–in part as a result of his Senate debates with nullification proponent Senator Robert Hayne of South Carolina. Webster spent the final decade of his life attempting to avert the growing sectional divide, never wavering in his defense of the Union. In this speech he restated his longstanding conviction that “Peaceable secession is an utter impossibility.” He died two years later, in 1852, with the nation divided.

March 7, 1850

Mr. President:

I wish to speak today, not as a Massachusetts man, nor as a Northern man, but as an American, and a member of the Senate of the United States. Read more

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Sometimes the smallest, most seemingly inconsequential events can have tremendous historical significance–a minor Central European Arch Duke’s assassination igniting World War I, for instance.  So it is with The Wilmot Proviso, a 71-word, one paragraph bill in the US House of Representatives.

Introduced by Pennsylvania Congressman David Wilmot in 1846 as part of the debate on appropriations for the cessation of the Mexican-American War (and treaty negotiations), the Proviso would have banned slavery in any territories acquired from Mexico as a result of America’s victory in that war. Read more

Early on in the Mexican-American War, America gained control over a vast swath of new territory extending from the Great Plains to the Pacific Ocean. In 1846, Congressman David Wilmot proposed a ban on slavery across the region, angering those who advocated on behalf of slavery’s westward expansion.

August 8, 1846

Provided, That, as an express and fundamental condition to the acquisition of any territory from the Republic of Mexico by the United States, by virtue of any treaty which may be negotiated Read more

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

The Missouri Compromise

William C. Duncan, Director of the Marriage Law Foundation

In our day, it is common, indeed expected, for the United States Supreme Court to strike down laws passed by Congress as unconstitutional. In the first decades of the United States, however, this was an exceedingly rare practice. In fact, in 70 years, the Court struck down only two federal laws as unconstitutional. The second of these was the Missouri Compromise.

The Compromise was legislation that arose out of a controversy about extending slavery into the northern parts of the territory acquired during the Louisiana Purchase.  The legislation “admitted Missouri as slave state but otherwise prohibited slavery Read more

The sectional struggle over slavery came to a head in 1820. With eleven free states and eleven slave states, if Missouri entered the Union as a slave state, the balance of power would shift toward the South. After several months of debate, a compromise emerged: Maine would enter the Union as a free state, Missouri as a slave state. Additionally, slavery was prohibited in the territory of the Louisiana Purchase north of Missouri’s southern border.

March 6, 1820

An Act to authorize the people of the Missouri territory to form a constitution and state government, and for
the admission of such state into the Union Read more

Guest Essayist: Charles K. Rowley, Duncan Black Professor Emeritus of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

In this 1830 response to Edward Everett of Massachusetts James Madison maintains that a state does not possess the authority to strike down as unconstitutional an act of the federal government.  If you find the essay long-winded, you are correct in this assessment.  It is long-winded because James Madison was a hypocrite on the issue of nullification, supporting the notion when it suited him, and rejecting it when it did not. You may learn from this episode an important lesson about human nature.  The greatest of founding fathers does not always make a great secretary of state, a great president, or a great elder-statesman.  James Madison (and Thomas Jefferson) were no exceptions to this insight. Read more

In this 1830 response to Massachusetts statesman Edward Everett, Madison maintains that a state does not possess the authority to strike down as unconstitutional an act of the federal government. The contrary doctrine, known as nullification, would take on later significance.

August 28, 1830

I have duly received your letter in which you refer to the “nullifying doctrine,” advocated as a constitutional right by some of our distinguished fellow citizens; and to the proceedings of the Virginia Legislature in 98 and 99, as appealed to in behalf of that doctrine; and you express a wish for my ideas on those subjects. Read more

Guest Essayist: James Legee, Graduate Fellow at the Matthew J. Ryan Center for the study of Free Institutions and the Public Good, Villanova University

Thomas Jefferson’s April, 1820 Letter to John Holmes came as the nation expanded westward into the Louisiana Purchase, and with the homesteaders and settlers came the question of slavery.  In an attempt to address slavery and its role in the new territories, it was agreed by Congress that slavery would be allowed in Missouri but no other state North of the 36°30′ line; additionally, Maine would enter the Union as a Free State. Read more

Awakened to the looming crisis over slavery by the Missouri Compromise, Jefferson foresees in this letter that the Compromise was far from the final word on the matter.

April 22, 1820

I thank you, dear Sir, for the copy you have been so kind as to send me of the letter to your constituents on the Missouri question. Read more

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Politics, a process of using rhetoric to maneuver and influence in order to either induce policy change or maintain the status quo, has been compared to many things–war, football, chess.  And like these comparatives, one side or another can outmaneuver the other (or, in turn, be outmaneuvered). Read more

Even worse than political errors such as the Northwest Ordinance, Calhoun argues here, are theoretical errors, chief of which is the equality principle of the Declaration of Independence.

June 27, 1848

…I turn now to my friends of the South, and ask: What are you prepared to do? If neither the barriers of the constitution nor the high sense of right and justice should prove sufficient to protect you, Read more

Guest Essayist: Andrew Langer, President, Institute for Liberty

In his historical play, Henry V, Shakespeare talks about casting our glance back through history, and compressing the events of many years “into an hourglass.”  In the 21st Century, it is easy to think of the debates on the abolition of slavery as having taken place with the relative-rapidity of the passage of Obamacare, but in reality this debate happened over the course of nearly an entire century of the nation’s founding years. Read more

The number of slaves in America had grown from 700,000 in 1790 to over two million in 1830. Northern opposition to slavery was growing in the 1820s and 1830s, as it became clear that hopes for a withering away of slavery were unrealistic. This elicited a similarly strong response Read more

Guest Essayist: Logan Beirne, Olin Scholar at Yale Law School and author of Blood of Tyrants: George Washington & the Forging of the Presidency

A complicated man of contradictions, Thomas Jefferson owned hundreds of slaves throughout his life but opposed the institution. His letter reflects this paradox: Read more

The Constitution specified that Congress could not prohibit the importation of slaves until 1808. President Jefferson signed the bill to bring about this prohibition in March 1807 and it went into effect on January 1, 1808. Writing here a year later, he maintains hopes for an end to slavery itself. Read more

Guest Essayist: Brenda Hafera, Finance and Events Co-Ordinator at the Matthew J. Ryan Center For the Study of Free Institutions and the Public Good at Villanova University

John Jay is often lost in the long shadow cast by the legacies and genius of his Federalist co-authors, James Madison and Alexander Hamilton.  Indeed, Jay authored only five of the eighty-five articles.  This was not because his co-authors doubted his abilities or influence, but because Jay was stricken with illness and unable to contribute further.  John Jay was a politician, patriot, Chief Justice, and a man of deep and seasoned principles.  Being so driven by principle, one of the great causes Jay undertook was to limit the institution of slavery however possible in America.  This endeavor is the subject of his “Letter to the English Anti-Slavery Society.” Read more

In 1777, Jay’s first attempt to abolish slavery in New York failed. In 1788, the state banned the importation of slaves. By 1799, the New York Manumission Society advocated for a bill, signed into law that year by then-Governor Jay, specifying that as of July 4, all children born to slave parents would be freed by a certain age. Less than a year after the Constitutional Convention, Jay addresses concerns from his British counterparts that anti-slavery progress in America is too slow.

June 1788

Gentlemen:

Our society has been favored with your letter of the 1st of May last, and are happy that efforts so honorable to the nation are making in your country to promote the cause of justice and humanity relative to the Africans. Read more

Guest Essayist: Nathaniel Stewart, attorney in Washington, D.C.

Before ever penning his share of The Federalist Papers, before championing the Constitution for a new nation, before laying the foundations of American fiscal policy, Alexander Hamilton was a vocal and “passionate critic” of the practice of slavery.[1]

In March 1779, in the throes of the American War for Independence, Hamilton wrote to his friend and fellow New Yorker, John Jay, to endorse an effort proposed by Colonel John Laurens of South Carolina to recruit and employ black slaves in the Continental Army.  Jay was sympathetic to Hamilton’s abolitionism,
Read more

Hamilton, a founder of the New York Manumission Society, writes to John Jay, a co-founder of the Society and then-president of the Continental Congress, arguing that slaves should be allowed to fight for the American cause in the War for Independence, earning their “freedom with their muskets.” Eventually, some 5,000 blacks served as soldiers in the war.

March 14, 1779

Dear Sir:

Colonel Laurens, who will have the honor of delivering you this letter, is on his way to South Carolina, Read more

Guest Essayist: Paul Schwennesen, southern Arizona rancher and Director of the Agrarian Freedom Project

Summary of Jefferson’s 18th Query[1] on “Manners” (but it’s really about Slavery!)

Thomas Jefferson was a famously polite gentleman. “Manners,” however, has nothing to do with etiquette.  You could be forgiven for giving the chapter a miss, fearing a tedious discussion of odd 18th century habits and norms (“don’t pick fleas in publick,” “put your best foote forward when bowing to a lady,” and so on…) But don’t be fooled, “Manners” contains none of that and skipping it would be a mistake. Read more

The primary author of the Declaration of Independence, Jefferson was well aware that his ownership of slaves violated the principles he espoused.

1784

The particular customs and manners that may happen to be received in that State?

It is difficult to determine on the standard by which the manners of a nation may be tried, whether catholic or particular. Read more

Guest Essayist: Julie Silverbrook, Executive Director of The Constitutional Sources Project

George Washington, John Adams, Benjamin Franklin, Alexander Hamilton and James Madison on Slavery

Historian William Freehling has famously said, “[i[f men were evaluated in terms of dreams rather than deeds everyone would concede the antislavery credentials of the Founding Fathers.”[i] While the Founding generation unquestionably aspired to create a nation founded on universal freedom, the challenges of creating a nation, maintaining a profitable economy — both personally and nationally, and overcoming personal prejudices made that dream a distant reality. Read more

None of the leading Founders ever declared slavery to be a just or beneficial institution. In fact, they hoped to see the slave trade eradicated, and eventually the entire institution of slavery made illegal.

George Washington
Letter to Robert Morris 1
April 12, 1786

“…[T]here is not a man living who wishes more sincerely than I do, to see a plan adopted for the abolition of it….” Read more

Guest Essayist: Kyle Scott, Professor of Constitutional Law, University of Houston

The Northwest Ordinance–adopted in 1787 by the Congress of the Confederation and passed again by Congress in 1789 after the ratification of the U.S. Constitution to govern the Northwest Territories which included modern day Ohio, Indiana, Illinois, Michigan, and Wisconsin–is undeniably an ordinance that inherits and extends the common law tradition. This means property rights take center stage and due process of law is established as a means of protecting property rights and the rights constituent to property such as life and liberty. Read more

Passed when only a single state outlawed slavery, the anti-slavery stance of the Northwest Ordinance–barring slavery in the territories, and thus in future states–gave weight to Abraham Lincoln’s later argument that the Founders sought to place slavery “in the course of ultimate extinction.”

July 13, 1787

Article VI

…There shall be neither slavery nor involuntary servitude in the said territory, Read more

Guest Essayist: Brian J. Pawlowski, former Claremont Institute Lincoln Fellow

Each year millions of Americans walk through the Charters of Freedom at the National Archives building in Washington D.C.  The Archives house our nation’s founding documents — the Declaration of Independence, Constitution, and Bill of Rights.  The combination of architectural beauty, august ambiance, and history is incredibly powerful.  There is something, however, that is not housed in the Charters of Freedom, something most Americans know nothing about: a deleted portion of the Declaration of Independence.  This part constituted the lengthiest section of Thomas Jefferson’s draft, was the most controversial, and was arguably the most vicious charge against the King of Great Britain.  The passage was about slavery.  Jefferson wrote: “He has waged cruel war against human nature itself, Read more

Jefferson’s first draft of the Declaration of Independence contained a critique of King George III’s involvement in the slave trade. Although not approved by the entire Second Continental Congress, it indicates that the leading Founders understood the slavery issue in moral terms.

1776

…He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian king of Great Britain. Read more

Guest Essayist: Mr. Robert Frank Pence, Founder, the Pence Group

He was crying from all six of his eyes. Tears gushed together with a bloody froth. Within each mouth, with gnashing teeth, he tore to bits a sinner so that he brought much pain to three at once. The first was Judas Iscariot; the second is Brutus; and the other is Cassius.

In the Ninth Circle of Dante’s Hell are punished traitors against their lords. Judas, the principal offender against religious/ecclesiastic law, is being chewed by Lucifer for having betrayed Christ. Cassius and Brutus are ground down by Lucifer for having murdered their temporal lord, Julius Caesar (who, by the way, merits only a passing mention in Inferno 4 wherein he reposes with other virtuous pagans).

It ought to strike us as strange that the leader of the Roman Empire will remain forever in Limbo while several other pagans were placed by Dante in purgatory or paradise. Cassius and Brutus are not excused by Dante for having killed the tyrant who subjugated all of Rome, Read more

Here Brutus criticizes the power granted by the Constitution to an independent judiciary.

January 31, 1788

The nature and extent of the judicial power of the United States, proposed to be granted by this constitution, claims our particular attention.Much has been said and written upon the subject of this new system on both sides, but I have not met with any writer, who has discussed the judicialpowers with any degree of accuracy. And yet it is obvious, that we can form but very imperfect ideas of the manner in which this government will work, or the effect it will have in changing the internal police and mode of distributing justice at present subsisting in the respective states, without a thorough investigation of the powers of the judiciary and of the manner in which they will operate. Read more

Guest Essayist: George Landrith, President, Frontiers of Freedom

Today, much of the national political debate centers on the size and scope of the federal government. Whether the discussion is focused on federal spending, the debt, or the merits and demerits of a nationalized healthcare system, at its core, the debate is about how much power the federal government should properly wield. Read more

Alexander Hamilton acknowledged the Federal Farmer–believed to be either New Yorker Melancton Smith or Virginian Richard Henry Lee–as “the most plausible” Anti-Federalist. Here, the Federal Farmer argues that the federalism of the Constitution is a mirage, for it sets up a structure in which all power will flow to the center. Read more

Guest Essayist: Justin Dyer, Ph.D., Author and Professor of Political Science, University of Missouri

Scholars generally attribute the authorship of the letters of Brutus to Robert Yates (1738-1801), a prominent New York politician and judge who was a delegate to the Philadelphia Convention in 1787.  After voicing his opposition to the plan of the Convention, Yates returned home to New York. During the state ratification debates, he then became an outspoken opponent of the proposed Constitution. In his polemical essays against the Constitution, Yates’ chosen pen name was Brutus, and his objective was to slay Ceasar. Read more

Supporters of the Constitution dubbed their opponents “Anti-Federalists.” Opponents resented the label, but it stuck. The Anti-Federalist author Brutus–most likely New York lawyer Robert Yates–penned this essay, the first of sixteen, a month after the Constitution was completed. Having attended the first month of the Constitutional Convention, Yates had left, disgusted with what he perceived as a plan that would give far too much power to the central government. Read more

Guest Essayist: Geordan Kushner, Fellow at the Mathew J. Ryan Center for the study of Free Institutions and the Public Good, Villanova University

George Washington’s letter transmitting the Constitution to Congress marked a milestone achievement in the founding of the modern United States. George Washington, the President of the Second Continental Congress, sent his letter on September 17, 1787 after four months of having been locked in a crucible of sweltering summer heat, clashing political interests, grueling debate, tenacious deadlock, and demanding compromise. Even though a majority of the convention’s delegates agreed to and drafted a new Constitution, it was well known that the real battle was soon to be realized. The battle to come would be the struggle to ratify the Constitution in at least nine states, which was the minimum number required in order for it to have the force of law. Read more

As they affixed their names to the new Constitution, the Framers understood that their work had just begun. Four months of debate and compromise paled in comparison to the challenge of convincing the states to ratify. Unanimity was not necessary for the Constitution to go into effect–only nine of thirteen states were needed–but they knew that without the approval of the largest of the states, including New York, Virginia, and Pennsylvania, their work would be for naught. Congress sent this letter to each state to begin the ratification process. Read more

Guest Essayist: Kevin R. C. Gutzman, J.D., Ph.D., Professor and Director of Graduate Studies Department of History, Western Connecticut State University and Author, James Madison and the Making of America

James Madison spent much of late 1786 and early 1787 at work on what one historian called his “research project.”  Having participated in helping bring about the interstate convention that was going to meet in Philadelphia in May 1787, he intended to apply both historical knowledge and practical experience to the task of shaping proposals he would make as a member of Virginia’s delegation to the convention.

To that end, he drafted a memorandum on the history of federal governments.  He also gathered his notes on problems in the American federal system under the Articles of Confederation into an eleven-point memorandum. Read more

In this essay, Madison outlines the main issues that the Constitutional Convention should address. His early arrival in Philadelphia allowed him to incorporate his ideas into a recommended plan for the Convention–what came to be called the Virginia Plan–representing no mere revision of the Articles of Confederation, but the adoption of an entirely new Constitution.

April 1787

1. Failure of the States to comply with the Constitutional requisitions.

This evil has been so fully experienced both during the war and since the peace, Read more

Guest Essayist: James Legee, Graduate Fellow at the Matthew J. Ryan Center for the study of Free Institutions and the Public Good, Villanova University

Thomas Jefferson’s Notes on the State of Virginia provides an examination of the difficulties the State of Virginia faced in governing itself over the course of the Revolutionary period.  Self-government, as the United States has learned over the last two centuries, is no mean feat.  It was made all the more difficult as there were no enduring examples to look to for guidance, and one of the greatest militaries the world had known had waged a war across the Thirteen Colonies.  Query XIII: Constitution addresses a wide range of issues, from justice in representation, the separation of powers, to a warning against expediency in deviating from the rule of law. Read more

Notes on the State of Virginia, Query XIII: Constitution 1

Thomas Jefferson

Virginia, the most populous state, adopted its state constitution in 1776, a month before the Declaration of Independence passed Congress. Jefferson, Virginia’s governor from 1779 to 1781, addressed the problems that plagued the state’s first attempt at self-government in his 1784 book, Notes on the State of Virginia. Read more

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

George Washington’s elegant and courteous letter to James Madison illustrates what America’s most eminent man thought about the existing government, or more properly, the need for reform of the system just prior to the Constitutional Convention of 1787 (as well as providing sage counsel about moderation in dealing with civil unrest and integrity in foreign relations, among other matters).

For Washington, the need for reform centered in the “inadequacy of the powers under which [the Confederation Congress] acts.” Read more

Washington writes here to Madison, two months before the Constitutional Convention was set to start in Philadelphia. A year earlier, only twelve men from five states attended a gathering held in Annapolis, Maryland, to amend the Articles of Confederation. Both men feared the consequences should this convention similarly fail.

March 31, 1787

My dear Sir:

At the same time that I acknowledge the receipt of your obliging favor of the 21st. Ult. from New York, Read more

Guest Essayist: James Legee, Graduate Fellow at the Matthew J. Ryan Center for the study of Free Institutions and the Public Good, Villanova University

Five years after the surrender at Yorktown, circumstances were all but calm for the young republic.  George Washington, retired to Mount Vernon, wrote a letter to the second Secretary of Foreign Affairs under the Articles of Confederation, John Jay, articulating his concerns over the state of events.  Washington began the letter disquieted by the divergent foreign policies the states pursued.  The focus of the letter quickly shifted from foreign policy, to alarm Read more

Washington writes here as a private citizen to Jay, who as Secretary of Foreign Affairs under the Articles of Confederation witnessed firsthand the Articles’ shortcomings, as each state pursued a different foreign policy.

August 15, 1786

Dear Sir:

I have to thank you very sincerely for your interesting letter of the twenty-seventh of June, as well as for the other communications you had the goodness to make at the same time. Read more

Guest Essayist: Horace Cooper: Legal commentator and Fellow at the Center for Political and Constitutional Studies at Frontiers for Freedom

In 1783, George Washington drafts a letter that he asks to be sent to the state legislatures of all the states that made up colonies of the USA.  These states were Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina, New Hampshire, Virginia, New York, North Carolina and Rhode Island.

Washington wrote as a retiring general and war hero to commend to his fellow citizens the need to examine its government’s existing operational flaws and pursue the kind of improvements that were soon to be found in a newly drafted US Constitution.   Read more

As Commander-in-Chief of the Continental Army, overseen by a national legislature that struggled to fund the War for Independence, General Washington was as familiar as anyone with the defects of the Articles of Confederation. In this, his last circular letter to the states, which he sent to the thirteen governors, Washington emphasizes the need for unity in the maintenance of the nation’s independence.

June 8, 1783

Sir:

The great object for which I had the honor to hold an appointment in the Service of my Country, being accomplished, I am now preparing to resign it into the hands of Congress, Read more

Guest Essayist: Brion McClanahan, Ph.D., Author of: The Founding Fathers Guide to the Constitution

If Jay Leno were to conduct a   “Man on the Street” segment and ask random Americans to name the first constitution for the United States, the answers would probably range from, “The Declaration of Independence,” to “the Preamble,” to “Who cares?”  The answer, of course, is The Articles of Confederation and Perpetual Union.  American ignorance of the Articles is problematic for several reasons, not the least of which being a lack of understanding about the fundamental structure of the American general government.  The Articles of Confederation is, in fact, the most maligned and misunderstood document in American political history.  It is the bedrock of the United States Constitution which replaced it, and the Founders’ conception of Union and the appropriate powers of government can be found in its Thirteen Articles. Read more

Guest Essayist: Dr. Charles K. Rowley, General Director of The Locke Institute and Duncan Black Professor Emeritus of Economics at George Mason University

The Articles of Confederation and Perpetual Union was an agreement among the thirteen founding states that established the United States of America as a confederation of sovereign states and that served as its first constitution. The Second Continental Congress began to draft the Articles on June 12, 1776, and sent an approved version to the states for ratification in late 1777.

The first state to ratify the Articles was Virginia on December 17, 1777.  Read more

Pennsylvanian John Dickinson–who declined to sign the Declaration of Independence because he believed that the states should be organized politically before declaring independence–wrote the first draft of the Articles of Confederation in 1777. Signed into effect that year and ratified in 1781, the Articles provided the structure of government for the states until the Constitution was ratified in 1788. During that period, the Articles’ deficiencies became increasingly obvious, and by the time of the Constitutional Convention, few Founders, including Dickinson, defended its continuation. Read more

Guest Essayist: Tony Williams, Program Director, Washington-Jefferson-Madison Institute

“Conscience is the Most Sacred of Property”: James Madison’s Essay on Property
by Tony Williams

On January 24, 1774, James Madison wrote to a college friend praising the Boston Tea Party, which had occurred only weeks before.  He praised the Boston patriots for their boldness in “defending liberty and property.”  Equating political and civil liberty, he warned that if the Church of England had established itself as the official religion of all the colonies, then “slavery and subjection might and would have been gradually insinuated among us.” Read more

Madison, known as the “Father of the Constitution,” was elected from Virginia to the U.S. House of Representatives in 1788, where he served four terms. This essay, which then-Congressman Madison wrote for a New York newspaper, connects the idea of property rights as commonly understood to man’s natural rights, culminating in the right of conscience.

March 29, 1792

This term in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.” Read more

Guest Essayist: Tony Williams, Program Director, Washington-Jefferson-Madison Institute

On January 1, 1802, President Thomas Jefferson received a thirteen-foot mammoth cheese weighing some 1,200 pounds.  It was delivered by dissenting Baptist minister and long-time advocate of religious liberty, Reverend John Leland, who then preached a sermon to the president and members of Congress at the Capitol two days later.  Jefferson took the opportunity to compose a letter to the Danbury Baptists on the relationship between government and religion that would shape the course of twentieth-century jurisprudence. Read more

The Danbury Baptist Association, aware of Jefferson’s earlier role in overturning the Anglican establishment in Virginia, expressed hope that as president he might help liberate them from the religious constraints in Connecticut. Jefferson’s response, in which he employs the famous “wall of separation between church and state” metaphor, is not a demand for the separation of religion and politics; rather, it addresses the principle of federalism. As president, Jefferson is unable to interfere in this state issue. Likewise, Congress is prohibited from doing so by the First Amendment’s religion clauses. The citizens of Connecticut must remedy their situation by amending their state constitution and statutes–as eventually they did. Read more

Guest Essayist: Justin Butterfield, Religious Liberty Attorney at the Liberty Institute

At the end of his second presidential administration, after forty-five years serving America, President Washington did not want to leave without imparting some final guidance and wisdom. To do so, Washington, working from drafts written by James Madison and Alexander Hamilton, wrote a letter to the American people titled “The Address of Gen. Washington to the People of America, on his Declining the Presidency of the United States” and more popularly known as “Washington’s Farewell Address.” Read more

Washington had first prepared a farewell address to be delivered in 1792, upon the conclusion of his first term as president. Having been convinced to stand for a second term, he was unanimously re-elected. When he finally issued this address in 1796, it was his last public work. After nearly forty-five years of service, he retired to Mount Vernon.

September 19, 1796

Friends, and Fellow Citizens:

The period for a new election of a Citizen, to Administer the Executive government of the United States, being not far distant, Read more

Essayist: Robert Lowry Clinton, Professor and Chair Emeritus, Department of Political Science, Southern Illinois University Carbondale

President George Washington’s famous letter “To the Hebrew Congregation in Newport, Rhode Island” of August 18, 1790, is a response to a letter of the previous day penned by Moses Seixas on behalf of Congregation Yeshuat Israel. Seixas’s letter gives thanks to God for the religious liberty afforded at last by a government “erected by the Majesty of the People” and an “equal and benign administration.” This, after centuries of persecution and oppression of the descendants of Abraham by governments worldwide. Read more

The Constitution of 1787 said little directly about religion, with the notable exception of a ban on religious tests as a requirement for federal office. When Washington was elected president, the Bill of Rights had not yet been adopted. Despite this, in his response to a congratulatory note sent to him by a group of Jewish Americans, President Washington characterized religious liberty not as a gift of government or a matter of toleration, but as a natural right possessed by every human being. Read more

Guest Essayist: Gennie Westbrook, Director of Curriculum and Professional Development, The Bill of Rights Institute

America’s Founding generation well understood the principle that, in order to maintain individual liberty and freedom of conscience, civil government must be limited in its purpose and its power.  They also knew the history of widespread and bloody religious conflict behind that principle.  At the same time, many Americans believed that government should support religion because religion promoted virtuous lives and nurtured the social order needed for self-government.  Balancing these concerns was a matter of great significance. Read more

Jefferson asked to be remembered on his tombstone as author of the Declaration of Independence, father of the University of Virginia, and author of this law. Long delayed because of the contentiousness of the subject and the powerful interests arrayed against it, the Virginia Statute was drafted in 1777, introduced as a bill in the 1779 legislative session, and adopted in 1786. Eventually the laws of all thirteen original states would prohibit an established church and guarantee religious liberty to all.

January 16, 1786

I. Well aware that the opinions and belief of men Read more

Guest Essayist: Justin Butterfield, Religious Liberty Attorney at the Liberty Institute

James Madison’s “Memorial and Remonstrance against Religious Assessments” is an important document in establishing the necessity of religious liberty in America.

Madison grew up in a Virginia in which the Church of England was the established church. Not only were Virginia’s citizens taxed to support the Church of England, but ministers of other denominations were frequently jailed for preaching what they believed. In January of 1774, Read more

Madison circulated the Memorial and Remonstrance anonymously in 1785 as part of the effort to pass the Virginia Statute for Religious Freedom. It appeals to Christian citizens by emphasizing that Christianity’s own teachings preclude politically coerced support for particular sects, and to all citizens based on reason. Read more

Guest Essayist: Allison R. Hayward, political and ethics attorney

Enacted on July 13, 1787, the Northwest Ordinance was a great achievement, and a document Americans should be proud to own.  Yet it emerged from a Congress that, under the Articles of Confederation, had not been able to achieve very much.  Circumstances in the territories, moreover, were very difficult, and the motives for passing the ordinance among many Members were less than honorable.  That shouldn’t change our positive view of the Ordinance, but might instead lead us to think about how petty motives can nonetheless, sometimes, lead to great things. Read more

Adopted by the Congress of the Confederation in 1787, the Northwest Ordinance set forth a model for the expansion of the American republic. Providing a governing structure for the territory that would later become Ohio, Indiana, Illinois, Michigan, and Wisconsin, it prohibited slavery, protected religious liberty, and encouraged education. Following the adoption of the Constitution, the new Congress passed the Northwest Ordinance again in 1789. Read more

Guest Essayist: George Landrith, President, Frontiers of Freedom

The Founders’ proclamations on fasting and prayer are relevant today

by George Landrith

Today, many Americans think that government and even public life must be strictly separated from religious life and faith. Few know what the Constitution actually says about religious freedom or what the Founders believed about the concepts of liberty, God, and religion. But our history paints a very clear picture.

On March 16, 1776, the Continental Congress meeting in Philadelphia issued a proclamation calling for a day of fasting and prayer. Read more

The petition of this Fast Day Proclamation was echoed repeatedly by Congresses in early American history.

December 11, 1776

Whereas, the war in which the United States are engaged with Great Britain, has not only been prolonged, but is likely to be carried to the greatest extremity; and whereas, it becomes all public bodies, as well as private persons, to reverence the Providence of God, and look up to him as the supreme disposer of all events, and the arbiter of the fate of nations; therefore, Read more

Guest Essayist: Kevin R. C. Gutzman, J.D., Ph.D. Professor and Director of Graduate Studies Department of History, Western Connecticut State University and Author, James Madison and the Making of America

The Virginia Declaration of Rights is one of the key source documents of the U.S. Constitution.  This first American declaration of rights includes multiple provisions later echoed, and even copied, by the authors of the U.S. Constitution.  The Declaration’s chief author, George Mason, and one of the two other main contributors, James Madison, played extremely prominent roles in both the writing and ratification of the Constitution and the movement culminating in the Bill of Rights, so the resemblance is no surprise. Read more

The Virginia Declaration of Rights, drafted by George Mason as a preamble to the Virginia Constitution, is–along with the Declaration of Independence that followed a month later–the clearest statement of the social contract theory of government found in major early American documents.

June 12, 1776

A declaration of rights made by the Representatives of the good people of Virginia, assembled in full and free Convention; which rights do pertain to them and their posterity, as the basis and foundation of Government.

Section 1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, Read more

Guest Essayist: Scot Faulkner, Co-Founder, George Washington Institute of Living Ethics, Shepherd University

In the last public communication of his life, Thomas Jefferson made it crystal clear why documents and actions have lasting consequences.  In his letter to Washington, DC Mayor, Roger C. Weightman, Jefferson eloquently asserts the legacy of the Declaration of Independence by declaring it: “the signal of arousing men to burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings and security of self-government.”

Jefferson was a student of history.  He understood its central role in our present and future.  Earlier he wrote: “History, by apprising them of the past will enable them to judge of the future; Read more

Written just days before his death on July 4, 1826, this letter to the mayor of Washington, D.C., encapsulates the great cause of Jefferson’s life.

June 24, 1826

Respected Sir:

The kind invitation I receive from you, on the part of the citizens of the city of Washington, to be present with them at their celebration on the fiftieth anniversary of American Independence, as one of the surviving signers of an instrument pregnant with our own, and the fate of the world, is most flattering to myself, and heightened by the honorable accompaniment proposed for the comfort of such a journey. Read more

Guest Essayist: Scot Faulkner, Co-Founder, George Washington Institute of Living Ethics, Shepherd University

As 1776 began, America’s rebellion against British colonial rule was not yet a revolution.  Less than half the projected number of volunteers had enlisted in the Continental army with desertions mounting.  George Washington was entrenched, but stalemated in Cambridge outside of Boston. The British Commander, General John Burgoyne, mocked the situation by writing and producing the satirical play, “The Blockade”, which portrayed Washington as an incompetent flailing a rusty sword.  Then something amazing happened.

“Common Sense” was published on January 9, 1776.  It remains one of the most indispensable documents of America’s founding.  In forty-eight pages, Thomas Paine accomplished three things fundamental to America.   Read more

Published anonymously in January 1776 by an Englishman who had come to Philadelphia two years before, Common Sense became the most published work of the founding era. Printed over half a million times in a nation of three million people, it made a passionate case for liberty and against monarchy. Unpopular in later life for his attacks on Christianity, Paine will always be remembered for this pamphlet–a pamphlet often said to have launched the American Revolution.

January 10, 1776

On the Origin and Design of Government in General, With Concise Remarks on the English Constitution

Some writers have so confounded society with government, Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

With the certitude of wisdom and the patronizing tone one might recall from one’s own youth, the precocious young Alexander Hamilton offers to teach the Loyalist Samuel Seabury the true meaning of the rights of man. The pointed words used and Hamilton’s sarcastic references to the “Farmer’s” ignorance of the God-given nature of those rights are put in even greater relief when one is reminded that Seabury was one of a long line of bishops, rectors, and professors in the American Episcopal Church and extremely influential in the development of the American church’s doctrine after the Revolution. “If you will follow my advice, there still may be hopes of your reformation,” takes on more layers of meaning, when addressed to a Protestant Read more

When Loyalist writings began to appear in New York newspapers in 1775, nineteen-year-old Hamilton responded with an essay defending the colonists’ right of revolution. Still a student at King’s College, he followed up with this second pamphlet, expanding his argument on the purpose of legitimate government.

February 23, 1775

I shall, for the present, pass over to that part of your pamphlet, in which you endeavor to establish the supremacy of the British Parliament over America. After a proper eclaircissement of this point, I shall draw such inferences, as will sap the foundation of every thing you have offered. Read more

Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

John Adams wrote, “The Revolu­tion was effected before the war commenced. The Revolution was in the minds and hearts of the people … This radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution.”

How did a revolution commence in the minds and hearts of Americans? It germinated in pulpits and taverns, and from pamphleteers and newspapers. By the time the Declaration of Independence was signed, there was a colonial consensus on a few key principles. Today, we call these the Founding Principles or First Principles. Read more

Pastors and ministers were among the highest educated citizens in the American colonies, and often addressed politics from the pulpit. This sermon by Hitchcock was delivered on election day in 1774, in the presence of General Thomas Gage, the British military governor of the Province of Massachusetts Bay. It decries British monarchical rule and celebrates the idea of the consent of the governed, appealing to reason as well as revelation.

1774

…In a mixed government, such as the British, public virtue and religion, in the several branches, though they may not be exactly of a mind in every measure, will be the security of order and tranquility–Corruption and venality, the certain source of confusion and misery to the state. Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

On July 4, 1776, the Continental Congress, after months of preparation and weeks of political wrangling, announced that it had adopted an independence declaration. That document was written by Thomas Jefferson and substantially revised (“mangled,” according to Jefferson) by the Congress. Due to his other obligations, Jefferson had little time to spend on this task. Fortunately, he had composed his Summary View of the Rights of British America just two years earlier, from which he could draw much of the substance of the new document.

The Summary View resonates quite differently from the petitions, remonstrances, and declarations of a decade earlier. Read more

Jefferson began his public career in 1769 in the Virginia House of Burgesses, the colonial legislature. British implementation of the Coercive Acts of 1774 (also known as the Intolerable Acts)–passed in response to the Boston Tea Party–prompted the “Summary View,” Jefferson’s first publication. Written for Virginians who were choosing delegates to the First Continental Congress, it laid the groundwork for later appeals by a “free people, claiming their rights as derived from the laws of nature.”

July 1774

Resolved, that it be an instruction to the said deputies when assembled in General Congress with the deputies from the other states of British America to propose to the said Congress that an humble and dutiful address be presented to his majesty begging leave to lay before him as chief magistrate of the British empire the united complaints of his majesty’s subjects Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Rights of the British Colonies Asserted and Proved-James Otis

The Declaration of Rights of the Stamp Act Congress of 1765 set forth the fundamental principle that no taxes could be imposed on them, “but with their own consent, given personally, or by their representatives.” This principle was reduced to the aphorism “taxation without representation is tyranny” and, eventually, “no taxation without representation.” One cannot assign this idea to any individual or movement, as it reflects a long historical struggle between King and Parliament that culminated in the Glorious Revolution and the English Bill of Rights of 1689. Read more

Otis rose to prominence in 1761, after he gave a courtroom speech opposing the Writs of Assistance–blanket warrants issued by the British for searching suspect property. He edited that speech into this essay three years later, after the passage of the Sugar Act. Its arguments contain the seed of the American Revolution–an appeal to natural rights applied against particular abuses of political power. Struck by lightning in 1783, Otis did not live beyond the Revolution. But John Adams remarked that he had never known a man “whose service for any ten years of his life were so important and essential to the cause of his country as those of Mr. Otis from 1760 to 1770.”

1764

Let no Man think I am about to commence advocate for despotism, Read more

Guest Essayist: Hadley Heath, Senior Policy Analyst at the Independent Women's Forum

Modern people argue about the importance of the Constitution asking: Should we strictly adhere to its words, or should we view it as a living document?  The Founders penned it more than 200 years ago.  Is it still relevant today?

In his short piece, “Fragment on the Constitution and the Union,” Abraham Lincoln asserts that it is not the founding document that bears the greatest importance, but the principle that undergirds it.  Namely, the principle upon which America was founded: liberty for all.  So long as we are true to this principle, we are honoring the essence of the American idea.

Lincoln explains that the United States of America could have been formed as a new nation without the principle of liberty for all.  Given the circumstances — mass immigration to the New World, Read more

This never appeared in Lincoln’s public speeches, but it is possible that he composed it while writing his First Inaugural Address. It draws upon the King James translation of Proverbs 25:11–”A word fitly spoken is like apples of gold in pictures of silver”–to describe the relationship between the principles of the Declaration and the purpose of the Constitution.

January 1861

All this is not the result of accident. It has a philosophical cause. Without the Constitution and the Union, we could not have attained the result; but even these, are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something, is the principle of “Liberty to all”– Read more

Guest Essayist: Steven H. Aden, Senior Counsel and Vice President of the Center for Life at Alliance Defending Freedom

“It is emphatically the province and duty of the judicial department to say what the law is.” With those understated words, Supreme Court Chief Justice John Marshall ushered in the modern era of judicial review – the notion that it is up to judges, not legislators or presidents, to finally interpret and give meaning to the nation’s Constitution and laws.

During the founding era, Alexander Hamilton had written Federalist 78, to assure those wary of a strong federal judiciary that “[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution,” because it holds neither the power of the sword, as the Executive (Presidential) Branch does, nor the power of the purse strings, as the Legislative Branch (Congress) does. Read more

Thomas Jefferson’s election as president is often called the “Revolution of 1800,” because it marked the first peaceful transfer of power from one political party to another. Despite its uniquely pacific character, the election’s aftermath was marked by partisan rancor. The day before Jefferson took office, President John Adams commissioned fifty-eight Federalist judges. Read more

Guest Essayist: Tony Williams, Program Director, Washington-Jefferson-Madison Institute

The Constitution

When Thomas Jefferson and James Madison were creating the University of Virginia, they decided that the three American documents that would best illuminate the meaning of the Constitution when teaching future statesmen were the Declaration of Independence (along with the ideas of John Locke and Algernon Sidney), George Washington’s Farewell Address, and the Federalist.

Thomas Jefferson’s Declaration of Independence expressed the universal principle that all men were endowed by a Creator with natural, unalienable rights.  Influenced by the ideas of John Locke’s social compact theory, the purpose of government was to protect those natural rights.

If any government became tyrannical, or destructive of the ends for which it was created, the people had a right to overthrow that government and to institute a government that would protect their rights. Read more

The Constitution of the United States of America

Fifty-five delegates from twelve states (Rhode Island declined to participate) traveled to Philadelphia to attend the Constitutional Convention, which began in May 1787. They quickly scrapped the existing Articles of Confederation, and after four months they concluded their business by adopting a new frame of government. On September 17, thirty-nine delegates signed the Constitution.
It was nine months before the requisite nine states ratified the Constitution, putting it into effect. The thirteenth state, Rhode Island, did not ratify it until 1790. Subsequently, it has been amended twenty-seven times.

September 17, 1787

Preamble

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility,

Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Algernon Sidney, the author of the Discourses, was a man of the 17th century’s Age of Reason. He was skeptical of organized religion though not by that measure doubting of God. He was firmly convinced of the inherent rationality of the human will and the essential equality of all humans as children of God, from which he deduced the ultimate sovereignty of individuals and the basis of the ethical state in the consent of the governed. That made him a foundational figure in the emerging English Whig republicanism, but one about whom history has given a divided verdict.

He was executed in 1683 for plotting to instigate rebellion against Charles II. Many historians believe that the evidence for that particular charge was procured. It is clear, however, that for many years he was supported in his machinations and plotting against the English government by generous support from the French king, Louis XIV. Read more

Involved in some of the same anti-monarchical causes as John Locke, Sidney was caught up in the conspiracy to oust King Charles II. He was beheaded on December 7, 1683, a martyr to the English Whig cause. Fifteen years after his death, his Discourses Concerning Government was published. A hero to John Adams and widely read in the American colonies, Sidney famously inscribed the following in the Visitor’s Book at the University of Copenhagen: “This hand, enemy to tyrants, by the sword seeks peace under liberty.” This inscription later inspired the state motto of Massachusetts.

1698

Chapter One

Section 17. God having given the Government of the World to no one Man, nor declared how it should be divided, left it to the Will of Man. Read more

Guest Essayist: Eric Mack Ph.D., University of Rochester, Professor of Philosophy and the author of John Locke (London: Continuum Press, 2009)

John Locke’s Second Treatise is the much better known half of his Two Treatises of Government. Although the Treatises were not published until 1689, they were composed during the decade that culminated in the Glorious Revolution of 1688. During that decade Locke was deeply involved in opposition to the authoritarian ambitions of Charles II and James II; and the Two Treatises were written to provide intellectual support for resistance against over-reaching monarchical power.

The Stuart Monarchs (James I and Charles I prior to the Civil Wars of the 1640s Read more

Locke’s Two Treatises of Government presented a critique of the divine right of kings and outlined the principles of natural rights and government by consent. Written during the 1670s, they were not published until after the Glorious Revolution of 1688 and the passage of the English Bill of Rights in 1689. Locke was the political theorist quoted most frequently by Americans in the 1770s.

1690

Chapter II. Of the state of nature.

4. To understand political power right, and derive it from its original, we must consider what state all men are naturally in, and that is, a state of perfect freedom Read more

Guest Essayist: Robert Frank Pence, Founder, The Pence Group

Cicero’s De Republica
by Robert Frank Pence

Cicero’s De Republica

Robert Frank Pence

Gone, gone for ever is that valour that used to be found in this Republic and caused brave men to suppress a citizen traitor with keener punishment than the most bitter foe.[1]

Marcus Tullius Cicero (106-43 B.C.E.) had a decision to make. Catiline and his fellow conspirators were going to assassinate Cicero and other Roman senators within hours.  What should he do?  Knowing that Rome had its enemies, domestic as well as foreign, Cicero immediately had several of the conspirators arrested, taken to prison, and executed, all without extending to them the right of trial.  Cicero announced their deaths to the crowd with the word vixerunt (“they had lived,” meaning, euphemistically, “they are dead”). Read more

On the Commonwealth 1

Marcus Tullius Cicero (c. 106-43 B.C.)

Cicero was the great defender of the Roman republic and a master of oratory. The author of several books on politics, philosophy, and rhetoric, he was the first to speak of natural law as a moral or political law, and was an important influence on the Founders.

C. 54-51 B.C.

…[33] True law is right reason, consonant with nature, spread through all people. It is constant and eternal; it summons to duty by its orders, it deters from crime by its prohibitions. Its orders and prohibitions to good people are never given in vain; but it does not move the wicked by these orders or prohibitions. It is wrong to pass laws obviating this law; it is not permitted to abrogate any of it; it cannot be totally repealed. We cannot be released from this law by the senate or the people, and it needs no exegete or interpreter like Sextus Aelius. There will not be one law at Rome and another at Athens, Read more

Guest Essayist: Kyle Scott, Professor of Constitutional Law, University of Houston

Aristotle studied under Plato and tutored Alexander the Great. If only because of his pedigree he should be read and understood by anyone who is interested in politics. But those who want to understand politics in general, and American politics in particular, would do well to study the works of Aristotle for the insight they provide on human nature and the nature of politics.

According to Aristotle, a person can be truly human only within a community. Aristotle wrote in the Politics that any man who exists outside of a community is either a beast or a god (Politics 1253a2, 1253a25; see also NE 1097b10). For man is by nature a political animal which means if he is to act according to his nature he must live among others. Read more

Thomas Jefferson began studying Greek at the age of nine, and later in life employed so many Greek phrases in his letters that John Adams, his frequent correspondent, complained of them. The Founders’ interest in classical languages was not academic, but political and philosophical. Among the ancient books that they drew upon was Aristotle’s Politics, a catalog of constitutions and a guide to understanding regimes.

The Politics 1

C. 335-322 B.C.

Book 1

Chapter 1. (1) Since we see that every city is some sort of partnership, and that every partnership is constituted for the sake of some good (for everyone does everything for the sake of what is held to be good), Read more

Guest Essayist: Tony Williams, Program Director, Washington-Jefferson-Madison Institute

Aristotle’s Nicomachean Ethics & American Republican Government

After George Washington was sworn-in as the first president of the new American republic on April 30, 1789, he delivered his First Inaugural Address to the people’s representatives in Congress.  He started the speech with his characteristic humility, stating that although he wished to retire to Mount Vernon and did not have the requisite skill to govern a country, he was nevertheless answering the call of his country.  The address struck a distinctly Aristotelian chord in Washington’s wishes for his country.

In his Nicomachean Ethics, the ancient Greek philosopher, Aristotle, describes his understanding of the basic nature of man.  Humans are rational creatures, he maintains, and must use that reason to exercise self-restraint over their passions.  That same rationality allows humans to be ethical, Read more

Written in the tradition of Aristotle’s teacher, Plato–and of Plato’s teacher, Socrates–the Nicomachean Ethics addresses the question, “What is the best life for man?” An extended reflection on virtue, happiness, and friendship, it helped to inform the moral and political thought of America’s Founders. There are echoes of it, for instance, in President George Washington’s First Inaugural Address, when he states “that there exists in the economy and course of nature, an indissoluble union between virtue and happiness.”

C. 350 B.C.

Book 1

Chapter 1. Every art and every inquiry, and likewise every action and choice, seems to aim at some good, and hence it has been beautifully said that the good is that at which all things aim. Read more

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Letter to Henry Lee (May 8, 1825)

In his 1825 letter to Henry Lee, Thomas Jefferson lays out the “object” of the Declaration, the origins of the “self-evident” principles it outlines, and the nature of its authority.

The “object of the Declaration of Independence,” he explains, was to “appeal to the tribunal of the world” with a justification of the decision “to resort to arms for redress” in response to “the acts of the British government contravening” the rights of Americans. This purpose is clear in the vast bulk of the Declaration that carefully lists these abuses and explains the means, short of war, Americans took to gain redress. Read more

In his later years, Jefferson answered hundreds of letters, including, in this instance, a query about the Declaration of Independence, explaining that it drew upon a long political and philosophical tradition and reflected principles widely understood by Americans of the founding era.

May 8, 1825

Dear Sir:

…That George Mason was the author of the bill of rights, and of the constitution founded on it, the evidence of the day established fully in my mind. Of the paper you mention, purporting to be instructions to the Virginia delegation in Congress, I have no recollection. Read more

Guest Essayist: W.B. Allen, Dean Emeritus, James Madison College; Emeritus Professor of Political Science, Michigan State University

Reading the Declaration of Independence

The Declaration of Independence bears the heading, “in Congress, July 4, 1776, a declaration by the representatives of the United States of America, in general Congress assembled.” At the outset we see the practice of a “congress” — it reads: “in Congress July 4, 1776.”  This act taken in a solemn assembly was called for specific purposes “by the representatives of the United States of America.” This is ambiguous, for the American states were previously colonies, not states.  Read more

July 4, 1776

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,- Read more

Guest Essayist: Dr. David Bobb, Director, Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, Hillsdale College

When in 1863 Abraham Lincoln began his address at Gettysburg battlefield with the phrase, “Four score and seven years ago,” he reminded his fellow citizens that their cause in the Civil War was also the cause of 1776.  In the year of America’s birth, Lincoln stated, “Our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.”

America’s principles are liberty and equality, and our Founding understanding of their relationship was revolutionary. Read more

Reading/Commenting Schedule for

4th Annual 90 Day Study:

 The Classics that Inspired Our Constitution and the Challenges Our Constitution Faces Today

 All Assigned Readings Are Available Online, Through Hillsdale College’s The U.S. Constitution: A Reader

 

Sunday, February 17 – Read The Declaration of Independence

 

Day 1 – Monday, February 18 – Comment on The Declaration of Independence Introductory Essay by Dr. David Bobb; Read The Declaration of Independence again

 

Day 2 – Tuesday, February 19 – Comment on The Declaration of Independence Essay, Part II by Dr. William B. Allen; Read Letter to Henry Lee by Thomas Jefferson

 

Day 3 – Wednesday, February 20 – Comment on Letter to Henry Lee by Thomas Jefferson Essay (by Bill Duncan); Read Nicomachean Ethics by Aristotle

 

Day 4 – Thursday, February 21- Comment on Nicomachean Ethics by Aristotle Essay (by Tony Williams); Read The Politics by Aristotle

 

Day 5 – Friday, February 22 – Comment on The Politics Essay by Aristotle (by Dr. Kyle Scott); Read On The Commonwealth by Marcus Tullius Cicero

 

Day 6 – Monday, February 25 – Comment On the Commonwealth by Marcus Tullius Cicero Essay (by Bob Pence); Read The Second Treatise of Government by John Locke

 

Day 7 – Tuesday, February 26 – Comment on The Second Treatise of Government by John Locke Essay (by Erick Mack); Read Discourses Concerning Government by Algernon Sidney

 

Day 8 – Wednesday, February 27 – Comment on Discourses Concerning Government by Algernon Sidney Essay (by Professor Joerg Knipprath); Read The Constitution of the United States of America

 

Day 9 – Thursday, February 28 – Comment on The Constitution of the United States of America Essay by Tony Williams; Read Marbury v. Madison by John Marshall

 

Day 10 – Friday, March 1 – Comment on Marbury v. Madison Essay by Steve Aden; Read Fragment on the Constitution and the Union by Abraham Lincoln

 

Day 11 – Monday, March 4 – Comment on Fragment on the Constitution and the Union by Abraham Lincoln Essay; Read Rights of the British Colonies Asserted and Proved by James Otis

 

Day 12 – Tuesday, March 5 – Comment on Rights of the British Colonies Asserted and Proved by James Otis Essay (by Joerg Knipprath); Read A Summary View of the Rights of British America by Thomas Jefferson

 

Day 13 – Wednesday March 6 – Comment on A Summary View of the Rights of British America by Thomas Jefferson Essay (by Joerg Knipprath); Read An Election Sermon by Gad Hitchcock

 

Day 14 – Thursday, March 7 – Comment on An Election Sermon by Gad Hitchcock Essay (by Jim Best); Read The Farmer Refuted by Alexander Hamilton

 

Day 15 – Friday, March 8 – Comment on The Farmer Refuted by Alexander Hamilton Essay (by Joerg Knipprath); Read Common Sense by Thomas Paine

 

Day 16 – Monday, March 11 – Comment on Common Sense by Thomas Paine Essay (by Scott Faulkner); Read Letter to Roger Weightman by Thomas Jefferson

 

Day 17 – Tuesday, March 12 – Comment on Letter to Roger Weightman by Thomas Jefferson Essay (by Scott Faulkner); Read Virginia Declaration of Rights by George Mason

 

Day 18 – Wednesday, March 13 – Comment on Virginia Declaration of Rights by George Mason Essay (by Kevin Gutzman); Read Fast Day Proclamation of the Continental Congress

 

Day 19 – Thursday, March 14 – Comment on Fast Day Proclamation of the Continental Congress Essay (by George Landrith); Read The Northwest Ordinance

 

Day 20 – Friday, March 15 – Comment on The Northwest Ordinance Essay (by Allison Hayward); Read Memorial and Remonstrance against Religious Assessments by James Madison

 

Day 21 – Monday, March 18 – Comment on Memorial and Remonstrance against Religious Assessments by James Madison Essay (by Justin Butterfield); Read Virginia Statute for Religious Freedom by Thomas Jefferson

 

Day 22 – Tuesday, March 19 – Comment on Virginia Statute for Religious Freedom Essay) by Thomas Jefferson Essay (by Gennie Westbrook) ; Read Letter to Hebrew Congregation by George Washington

 

Day 23 – Wednesday, March 20 – Comment on Letter to Hebrew Congregation by George Washington Essay (by Robert Clinton); Read Farewell Address by George Washington

 

Day 24 – Thursday, March 21 – Comment on Farewell Address by George Washington Essay (by Justin Butterfield); Read Letter to the Danbury Baptist Association by Thomas Jefferson

 

Day 25 – Friday, March 22 – Comment on Letter to the Danbury Baptist Association by Thomas Jefferson Essay; Read On Property by James Madison

 

Day 26 – Monday, March 25 – Comment on On Property by James Madison; Read The Articles of Confederation

 

Day 27 – Tuesday, March 26 – Comment on The Articles of Confederation; Read The Articles of Confederation again

 

Day 28 – Wednesday, March 27 – Comment on The Articles of Confederation; Read Circular Letter to the States by George Washington

Day 29 – Thursday, March 28 – Comment on Circular Letter to the States by George Washington; Read Letter to John Jay by George Washington

 

Day 30 – Friday, March 29 – Comment on Letter to John Jay by George Washington; Read Letter to James Madison by George Washington

 

Day 31 – Monday, April 1 – Comment on Letter to James Madison by George Washington Essay (by Bill Duncan); Read Notes on the State of Virginia Query XIII: Constitution by Thomas Jefferson

 

Day 32 – Tuesday, April 2 – Comment on Notes on the State of Virginia Query XIII: Constitution by Thomas Jefferson; Read Vices of the Political System of the United States by James Madison

 

Day 33 – Wednesday, April 3 – Comment on Vices of the Political System of the United States by James Madison Essay (by Kevin Gutzman); Read Letter Transmitting the Constitution by George Washington

 

Day 34 – Thursday, April 4 – Comment on Letter Transmitting the Constitution by George Washington; Read Essay I by Brutus

 

Day 35 – Friday, April 5 – Comment on Essay I by Brutus  (Essayist Bob Pence); Read Letters I and II by Federal Farmer

 

Day 36 – Monday, April 8 – Comment on Letter I and II by Federal Farmer; Read Essay XI by Brutus

 

Day 37 – Tuesday, April 9 – Comment on Essay XI by Brutus; Read Draft of the Declaration of Independence by Thomas Jefferson

 

Day 38 – Wednesday, April 10 – Comment on Draft of the Declaration of Independence by Thomas Jefferson; Read The Northwest Ordinance – The Founders on Slavery

 

Day 39 – Thursday, April 11 – Comment on The Northwest Ordinance – The Founders on Slavery Essay (by Dr. Kyle Scott); Read George Washington, John Adams, Benjamin Franklin, Alexander Hamilton and James Madison on Slavery

 

Day 40 – Friday, April 12 – Comment on George Washington, John Adams, Benjamin Franklin, Alexander Hamilton and James Madison on Slavery; Read Notes on the State of Virginia, Query XVIII: Manners by Thomas Jefferson

 

Day 41 – Monday, April 15 – Comment Notes on the State of Virginia, Query XVIII: Manners by Thomas Jefferson; Read Letter to John Jay by Alexander Hamilton

 

Day 42 – Tuesday, April 16 – Comment on Letter to John Jay by Alexander Hamilton; Read Letter to the English Anti-Slavery Society by John Jay

 

Day 43 – Wednesday, April 17 – Comment on Letter to the English Anti-Slavery Society by John Jay; Read Letter to Henri Gregoire by Thomas Jefferson

Day 44 – Thursday, April 18 – Comment on Letter to Henri Gregoire by Thomas Jefferson; Read Speech on Reception of Abolition Petitions by John C. Calhoun

 

Day 45 – Friday, April 19 – Comment on Speech on Reception of Abolition Petitions by John C. Calhoun; Read Speech on the Oregon Bill by John C. Calhoun

 

Day 46 – Monday, April 22 – Comment on Speech on the Oregon Bill by John C. Calhoun; Read Letter to John Holmes by Thomas Jefferson

 

Day 47 – Tuesday, April 23 – Comment on Letter to John Holmes by Thomas Jefferson; Read Letter to Edward Everett by James Madison

 

Day 48 – Wednesday, April 24 – Comment on Letter to Edward Everett by James Madison; Read The Missouri Compromise

 

Day 49 – Thursday, April 25 – Comment on The Missouri Compromise; Read The Wilmot Proviso

 

Day 50 – Friday, April 26 – Comment on The Wilmot Proviso; Read The Constitution and the Union by Daniel Webster

 

Day 51 – Monday, April 29 – Comment on The Constitution and the Union by Daniel Webster; Read Alabama Slave Code of 1852

 

Day 52 – Tuesday, April 30 – Comment on Alabama Slave Code of 1852; Read Speech on the Kansas-Nebraska Act by Abraham Lincoln

 

Day 53 – Wednesday, May 1 – Comment on Speech on the Kansas-Nebraska Act by Abraham Lincoln; Read Republican Party Platform of 1856

 

Day 54 – Thursday, May 2 – Comment on Republican Party Platform of 1856; Read Dred Scott v. Sanford by Justice Roger Taney

 

Day 55 – Friday, May 3 – Comment on Dred Scott v. Sanford by Justice Roger Taney; Read Speech on the Dred Scott Decision by Abraham Lincoln

 

Day 56 – Monday, May 6 – Comment on Speech on the Dred Scott Decision by Abraham Lincoln; Read A House Divided by Abraham Lincoln

 

Day 57 – Tuesday, May 7 – Comment on A House Divided by Abraham Lincoln; Read Speech at Chicago by Stephen Douglas

 

Day 58 – Wednesday, May 8 – Comment on Speech at Chicago by Stephen Douglas; Read Seventh Lincoln-Douglas Debate

 

Day 59 – Thursday, May 9 – Comment Seventh Lincoln-Douglas Debate; Read The Dividing Line between Federal and Local Authority: Popular Sovereignty in the Territories by Stephen Douglas

 

Day 60 – Friday, May 10 – Comment on The Dividing Line between Federal and Local Authority: Popular Sovereignty in the Territories by Stephen Douglas; Read Address at Cooper Institute by Abraham Lincoln

 

Day 61 – Monday, May 13 – Comment on Address at Cooper Institute by Abraham Lincoln; Read Reply in the Senate to William Seward by Jefferson Davis

 

Day 62 – Tuesday, May 14 – Comment on Reply in the Senate to William Seward by Jefferson Davis; Read Reply in the Senate to Stephen Douglas by Jefferson Davis

 

Day 63 – Wednesday, May 15 – Comment on Reply in the Senate to Stephen Douglas by Jefferson Davis; Read

South Carolina Secession Declaration

 

Day 64 – Thursday, May 16 – Comment on South Carolina Secession Declaration; Read Cornerstone Speech by Alexander Stephens

 

Day 65 – Friday, May 17 – Comment on Cornerstone Speech by Alexander Stephens; Read Farewell Address to the Senate by Jefferson Davis

 

Day 66 – Monday, May 20 – Comment on Farewell Address to the Senate by Jefferson Davis; Read First Inaugural Address by Abraham Lincoln

Day 67 – Tuesday, May 21 – Comment on First Inaugural Address by Abraham Lincoln; Read Message to Congress in Special Session by Abraham Lincoln

 

Day 68 – Wednesday, May 22 – Comment on Message to Congress in Special Session by Abraham Lincoln; Read The Emancipation Proclamation by Abraham Lincoln

 

Day 69 – Thursday, May 23 – Comment on The Emancipation Proclamation by Abraham Lincoln; Read Gettysburg Address by Abraham Lincoln

 

Day 70 – Friday, May 24 – Comment on Gettysburg Address by Abraham Lincoln; Read Second Inaugural Address by Abraham Lincoln

 

Day 71 – Monday, May 27 – Comment on Second Inaugural Address by Abraham Lincoln; Read Liberalism and Social Action by John Dewey

 

Day 72 – Tuesday, May 28 – Comment on Liberalism and Social Action by John Dewey; Read The American Conception of Liberty by Frank Goodnow

 

Day 73 – Wednesday, May 29 – Comment on The American Conception of Liberty by Frank Goodnow; Read What is Progress? by Woodrow Wilson

 

Day 74 – Thursday, May 30 – Comment on What is Progress? by Woodrow Wilson (Essayist Robert Clinton); Read Socialism and Democracy by Woodrow Wilson

 

Day 75 – Friday, May 31 – Comment on Socialism and Democracy by Woodrow Wilson; Read The President of the United States by Woodrow Wilson

 

Day 76 – Monday, June 3 – Comment on The President of the United States by Woodrow Wilson; Read The Presidency: Making an Old Party Progressive by Theodore Roosevelt

 

Day 77 – Tuesday, June 4 – Comment on The Presidency: Making an Old Party Progressive by Theodore Roosevelt; Read The Study of Administration by Woodrow Wilson

 

Day 78 – Wednesday, June 5 – Comment on The Study of Administration by Woodrow Wilson; Read The Right of the People to Rule by Theodore Roosevelt

 

Day 79 – Thursday, June 6 – Comment on The Right of the People to Rule by Theodore Roosevelt; Read Progressive Democracy by Herbert Croly

 

Day 80 – Friday, June 7 – Comment on Progressive Democracy by Herbert Croly; Read The Inspiration of the Declaration by Calvin Coolidge

 

Day 81 – Monday, June 10 – Comment on The Inspiration of the Declaration by Calvin Coolidge; Read Commonwealth Club Address by Franklin D. Roosevelt

 

Day 82 – Tuesday, June 11 – Comment on Commonwealth Club Address by Franklin D. Roosevelt; Read Democratic Convention Address by Franklin D. Roosevelt

 

Day 83 – Wednesday, June 12 – Comment on Democratic Convention Address by Franklin D. Roosevelt; Read What Good’s a Constitution by Winston Churchill

 

Day 84 – Thursday, June 13 – Comment on What Good’s a Constitution by Winston Churchill; Read Annual Message to Congress by Franklin D. Roosevelt

 

Day 85 – Friday, June 14 – Comment on Annual Message to Congress by Franklin D. Roosevelt; Read Commencement Address at Yale University by John F. Kennedy

 

Day 86 – Monday, June 17 – Comment on Commencement Address at Yale University by John F. Kennedy; Read Remarks at the University of Michigan by Lyndon B. Johnson

 

Day 87 – Tuesday, June 18 – Comment on Remarks at the University of Michigan by Lyndon B. Johnson; Read Commencement Address at Howard University by Lyndon B. Johnson

 

Day 88 – Wednesday, June 19 – Comment on Commencement Address at Howard University by Lyndon B. Johnson; Read A Time for Choosing by Ronald Reagan

 

Day 89 – Thursday, June 20 – Comment on A Time for Choosing by Ronald Reagan; Read First Inaugural Address by Ronald Reagan

 

Day 90 – Friday, June 21 – Comment on First Inaugural Address by Ronald Reagan

 

HOW TO DONATE

We are the only organization that utilizes the movies, music and television – kids’ own works – to inspire Americans of all ages to learn about the U.S. Constitution, by distributing their works through the national media.

  • 35 Television stations playing our winners’ PSA’s, with a reach of over 2 million
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  • $95,000 in scholarship funds presented to students from 27 different states who won high school and college best song, short film, speech, essay and public service announcement categories, all promoting our U.S. Constitution and founding principles, and/or our Turner M. Gauntt, Jr. Exemplary Citizen Award.
  • 632 Essays on our founding documents from 98 Nationally known Constitutional Scholars, archived and searchable on our website

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Read What One Of Our Winners Has
To Say About Constituting America:

“This trip has definitely created a deeper focus that this is the foundation of who we are. Our Constitution is there not to just say what the government can do – it is there to say what the government cannot do…..

Our younger generation has a really different way of understanding our world than any generation that’s before it because of the digital revolution… If we do not learn how to pass on what makes this country, then we’ll lose it.

What Constituting America is doing is unique: Giving that information to young people in an entertaining way through music, through PSA’s through short films and through speeches – there’s definitely that entertainment aspect in it and that is where most people are being influenced today.

Thank you so much to anyone and everyone who donated to this trip. You are making a difference in this country. You’ve made a difference in my life and in the lives of these other winners and my family, so thank you so much and please continue to support such a wonderful program because this is the future,” Jewel Gilbert, Constituting America’s Best College Speech Winner.

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Constituting America’s Summer Mentor Trip in New York City 

THANK YOU

Constituting America wishes to thank the generous donors who make our projects possible!  We want to recognize all our donors, but need your permission! If you are a donor, and would permit us to list your name below, please email us your authorization at constitutingamericadonors@yahoo.com

Washington Circle

Mr. and Mrs. Martin Hubbard
Mr. and Mrs. Bob Pence

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Mr. Chris Foster
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Hamilton Trust

Mr. Carlos Cervantes
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Mr. Don Weldon

Friends of Constituting America

Mr. Philip Ames
Mr. Turner Gauntt
The Robert Moak Family
Ms. Jocelyn White
Ms. Sue Andres
Ms. Bernadette Warrens
Thomas F. Cleary, M.D.
Mr. and Mrs. Mark Paoletta
Mr. Mike Ricciardi
Mr. and Mrs. Sheldon Cunningham
Mr. Richard Gruver
Mr. Ted Hoeborn
Mr. George Waller
Mr. Vincent Arona
Mr. David Crossley
Mr. Craig Eyrich
Mr. Jimmy Green
Mr. and Mrs. Ernest Arnold
Ms. Rebecca Berry
Ms. Cindy Clark
Ms. Donna Colton
Ryan, Logan & Tina Cook
Mr. Malcolm Cooper
Mr. Shawn Egide
Ms. Cheryl Ford
Ms. Lori Forrest
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Mr. and Mrs. Ed Perez
Mr. Jesse Stewart
Mr. Gary Tillery
Mr. Timothy Larson
Dr. Gene Ciliberti
Alonzo G. Paul
Mr. Larry Dean Strand
Mr. Nathan Adams
Ms. Alice Cronin
Mr. Anthony D. Hubble
Ms. Rosie Juarez
Mr. Jed Keck
Mr. Guy Paris
Mr. Luke Sheridan
Mr. Richard Swallow
Mr. James Weatherford
Mr. Edward Will
Mr. Phillip Wren
Mr. Robert Colwell
Ms. Nan Nicoll
Mr. and Mrs. George Greenlee
Ms. Julie Bedard
Mr. David Hathaway
Mr. Karl Zahn
Mr. Shawn Baker
Mr. Carl Jurrus
Mr. Ronald A. Montesano, P.E. 2010 President of the Kiwanis Club of Poughkeepsie
Mr. Alden Whitenack
Ms. Kathryn Etcheson
Ms. Patricia Birren-Wilsey

The Fourth of July
******

Bells cried out, cutting through the air of a still, humid night, crawling through the streets of Philadelphia. The full moon pierced through a small cloud, beaming its rays onto a solitary clock tower that stood in the middle of a maze of cobble stone streets. A white horse pounded its hooves onto the bricks below it as it passed across the road.

Light seeped through the open windows of a tall brick building, through the open windows of Independence Hall. The open paned windows served as peep holes into a congregation of men who plotted to alter the course of the world.

The opened windows lead to a room that was filled with the odorous scent of powdered wigs that clung to sweaty necks. Candle wax slowly dripped onto coarse, hand-made, dark oak tables. Dirt covered, black shoes, white-stocking legs, and bland cotton trousers led up to pondering, moist faces. A young, fiery red haired man stood in the corner of the room near the opened windows, glancing worriedly over his shoulder at a large sheet of parchment that rippled slightly due to the breeze that gusted through the room. An elderly man with a kind face, sparse strands of graying hair falling over coy eyes, sat in the middle of a group of stern-faced men.

The sudden eruption of sound as the bells marked the early hour of the morning startled the men out of their deep meditation. A middle aged Bostonian stopped his pacing abruptly and glanced out over the room of men and then turned his gaze over to a quivering quill pen that perched in a silver inkstand.

One phrase of words echoed through the deep recesses of all their minds as the final bong of the clock’s bell resonated in the room around them, the words “…we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”

The Bostonian, a man by the name of John Adams, strutted over to his chair and pressed his hands on the wooden back of the chair. “Well?” Adams started as he turned his eyes over to a man beside him who was thumbing the table aimlessly. His tone of voice revealed his worn patience after a long day of trying to persuade a group of southern men to pen their autographs onto a statement of independence.

Adams’s words caused a youthful man to spring out of his chair and walked up to the large desk in the front of the room that hosted as the podium for the large piece or parchment. John Hancock arrived at the desk and looked down at the black cursive writing that covered the document. On the top of the sheet, in large bold writing, the words “Declaration of Independence” were sprawled out. Hancock brusquely lifted the quill out of the stand, dipped the tip roughly into the bottle of black ink several times, and then swiftly, and not to mention largely, autographed his name under the statement. He let his hand drop the feather back into its stand and then pivoted on his shined heel.

He walked back down the aisle, ignoring the glances that followed him, and then lowered down into his chair. The red haired man, a young patriot by the name of Thomas Jefferson, the man who penned the document himself, looked over at Hancock with a new look of confidence in his eyes. As if Hancock had stuck the match that lighted a long line of candle sticks, one by one, the men in the room stood and walked forward to sign their name on the declaration that would change the world.

As the men lined up, Adams looked over to Jefferson and nodded. Jefferson walked forward and joined the men as they one by one signed their name. Adams looked out the window, attempting to fathom the magnanimous result this document would have on the rest of the world.

Adams knew, as he penned his name under a long list of the names that belonged to a brave group of patriots, that this document gave breath into a new nation. A new nation, the United States of America, which would promise freedom to all, which would secure the rights of the individual. A new nation, the United States of America, which would produce a Constitution that would harness the powers of government. A new nation, the United States of America, which would have a system of government like none other before: of the people, by the people, for the people. A new nation, the United States of America, that would be born of the courageous acts of one group of men, one group of Patriots, who were led by Divine Providence, who wanted to be free from Tyrannical rule and preserve freedom for all ages.

***************

It is easy to go about Independence Day, preparing for fun holiday events, hanging out with friends and family, watching spectacular fireworks shows, and not think twice about what this holiday stands for. This holiday stands for much more than the signing of a document that declared our independence. This holiday stands for much more than separating from Britain and tyrannical rule.

In the year 1776, on the fourth day of July, in a stuffy Independence Hall in the heat of Philadelphia, a group of men gathered because they knew something wasn’t right. They knew that the country they inhabited was intended to be the land of the free. They wanted to rid the tyrannical rule from over their heads and be able to breath freely the air of independence. They no longer could sit around, watching British redcoats march around their streets, terrorizing the people, and do nothing.

Each brave man who gathered in Independence Hall to compose a document, a declaration, of freedom, had a fire burning inside of them to create a country that would secure and promise freedom to all people. These patriots wanted their children to live in a free country, one without a king, tyrant, or dictator, looming over their heads.

On Independence Day, we must remember the acts of our founders, their brave acts that few men (or women) can even equal. We must remember the Divine Providential hand that guided a young America on a path of freedom. We must remember how blessed we are to live in a country where we can speak our minds without the fear of being imprisoned. We must remember how blessed we are to live in a country where We The People have power over our government through our vote.

So, as you are watching fireworks light up America’s sky tonight, remember the rockets, remember the men, that fought for your freedom, remember the men that signed a Declaration of Independence that changed the course of the whole world.

Guest Essayist: The Honorable John Boehner, 53rd Speaker of the U.S. House of Representatives

I’m honored and delighted Constituting America would extend me an opportunity to conclude this year’s round of essays on the amendment process and to address the genius of the U.S. Constitution.

Our Founding Fathers believed in some simple and yet, for their times, absolutely revolutionary ideas.  One of these ideas was that every individual possessed fundamental rights even prior to these rights ever being put into writing.  Recall the words of the Declaration that these rights were “unalienable” and their existence a “self-evident” truth.

Another revolutionary idea was that government power or action essentially occurs at the expense of individual rights and liberties.  This idea turned completely upside down the reality of nearly every government in history to that point.  Most systems of rule placed a monarch, tyrant, or oligarchy at the top of subservient masses.  Even in colonial times, many of us may forget, Americans were “subjects” to the British crown.

A remarkable thing about our system is that we place all of the citizenry at the top of the hierarchy.

At the Constitutional Convention in 1787, the Founders put in writing exactly how Americans would rule themselves within a framework of individual liberty.  The document announced to the world a new concept: limited government at the heel of free people.

George Washington described this concept in a letter to a nephew shortly after the conclusion of the convention.  “The power under the Constitution will always be in the people.  It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own choosing; and whenever it is executed contrary to their interests, or not according to their wishes, their servants can, and undoubtedly will, be recalled.”

Moreover, not only could representatives be changed, but the document itself could be altered.  The Constitution’s amendment process is self-government at work.  Other writers of this series over the past 90 days highlight more than two centuries of reform and adjustment.  Our Founders set up an amazing basic framework where citizens will forever have the privilege and right, under Article V, of making amendments.

During my early years in the House I worked for the ratification of the 27th Amendment, a provision dealing with Congressional pay originally part of the Bill of Rights but left un-ratified until 1992.  It was a privilege to see the genius of our Founders at work again, two centuries later.  My respect for that genius has only grown.

Shortly after my swearing in as Speaker of the House at the start of the 112th Congress, the Constitution was read in full on the House floor.  To the best of my knowledge, this had never been done before in American history.  I hope and trust a new tradition has been initiated.

This was done not only to honor liberty-loving Americans who take seriously Washington’s advice to recall “contrary” representatives, but because my Republican colleagues had promised to put our founding documents in their proper perspective.  In our Pledge to America, we said: “We pledge to honor the Constitution as constructed by its framers and honor the original intent of those precepts that have been consistently ignored – particularly the Tenth Amendment, which grants that all powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

My colleagues and I also passed a House rule that requires Members to cite Constitutional authority in every piece of legislation they introduce.  The American people deserve to know that the laws we pass and the actions we take comport with the spirit of our Constitution.

Let me again thank Constituting America for their education work.  They live by the admonition of James Madison: “A well-instructed people alone can be permanently a free people.”

Since its ratification in 1788 the success of our Constitution has been a precious gift worth defending.  It is a light for the rest of the world and a torch to be handed to future generations.

The Honorable John Boehner represents the 8th Congressional District of Ohio, and is serving in the 112th Congress as the 53rd Speaker of the U.S. House of Representatives.

June 22, 2012 

Essay #90 

 

Guest Essayist: Nathaniel Stewart, Attorney

Proposed Amendment: D.C. Statehood Amendment:

District of Columbia Statehood Proposal:

 

Section 1. For purposes of representation in the Congress, election of the President and Vice President, and article V of this Constitution, the District constituting the seat of government of the United States shall be treated as though it were a State.

 

Section 2. The exercise of the rights and powers conferred under this article shall be by the people of the District constituting the seat of government, and as shall be provided by the Congress.

 

Section 3. The twenty-third article of amendment to the Constitution of the United States is hereby repealed.

 

Section 4. This article shall be inoperative, unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

The nation’s capital city, Washington, DC, is a federal city, and it constitutes “the seat of Government of the United States.”[1] After great debate and deliberation over the location for the nation’s capital, the Founding generation settled upon a compromise in 1791.  Congress first raised the subject of a permanent capital for the government of the United States in 1783, and it was ultimately addressed in Article I, Section 8 of the Constitution (1787), which gave the Congress legislative authority over “such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States. …”  In 1788, Maryland gave to Congress “any district in this State, not exceeding ten miles square,” and in 1789 the state of Virginia ceded an equivalent amount of land.  In accordance with the “Residence Act” passed by Congress in 1790, President Washington in 1791 personally selected the diamond-shaped area along the shores of the Potomac River that is now the District of Columbia.

The Founders well-understood that the District of Columbia was under the control and jurisdiction of Congress itself, and the city was not itself a state, nor did it sit within the boundaries of any existing state.  This helped to ensure the federal government’s independence from state politics or inter-state quarrels that might develop and hinder federal action.  As a federal district, however, the capital did not have an elected local governor, nor did city residents have the right vote in national elections.

Nearly 200 years later, in 1961, the 23rd Amendment to the Constitution granted District residents the right to vote in Presidential elections, and it gave the District the number of electors in the electoral-college that it would have if it were a state.  The amendment did go so far as to provide the District with its own Senators or members of Congress, but the District has since gained a non-voting delegate in the House of Representatives.

A decade later, the left-wing political activist Julius Hobson formed the D.C. Statehood Green Party, which began campaigning for statehood for the District.  The movement for statehood, helped by Democratic Senator Ted Kennedy, was instrumental in Congress passing the District of Columbia Home Rule Act in 1973, granting the city an elected mayor and city council.

The movement pressed on, seeking full statehood for the District, and in 1978 Congress passed the District of Columbia Voting Rights Amendment.  The amendment was then sent it to the states for ratification.  The new amendment would have repealed the 23rd Amendment and given the District four electors (instead of three), as well as voting members in the Senate and House of Representatives.  The proposed amendment met with stiff opposition from the states who feared that granting the District voting members in Congress would dilute their own representation.  According to its terms, the proposed amendment would be “inoperative” if it was not ratified within seven years of the date it was submitted for ratification.  The deadline for ratification was August 22, 1985, and only sixteen of the fifty states had ratified the proposal before the time limit had expired, well-short of the thirty-eight needed for ratification.

In 1980, DC residents passed the District of Columbia Statehood Constitutional Convention of 1979, calling for a constitutional convention for a new state. Two years later, voters ratified the constitution for “New Columbia,” the proposed 51st state in the Union, but the campaign for statehood stalled after the proposed DC Voting Rights Amendment failed in 1985.  Since then, statehood advocates have periodically proposed legislation to enact the “New Columbia” state constitution, but it has never been passed by Congress, and the last serious congressional debate on the issue took place in November 1993, when D.C. a statehood proposal was defeated in the House of Representatives by a vote of 277 to 153.  Much of the momentum has since dissipated from the statehood campaign, and it is unlikely to be revisited by Congress or ratified by the several states anytime soon.


[1] U.S. Const. Amendment 23.

Nathaniel Stewart is an attorney in Washington, D.C.

June 21, 2012 

Essay #89 

Guest Essayist: Allison R. Hayward, political and ethics attorney

Another Proposed Amendment: Women’s Equal Rights:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

This history of the Equal Rights Amendment (ERA) is best understood in context with other great efforts as securing equality before the law for all.  But the ERA has also been used as a political tool in efforts to secure electoral advantage.  As with most social initiatives, the story offers a complicated mix of high purpose, low tactics, compromise, and for ERA supporters, frustration that extends to this day.

The roots of the ERA trace to 1848, when a group of activist social reformers and abolitionists met in Seneca Falls, New York, to discuss the rights of women.  This meeting produced a statement, which among other things called for the elimination of the subjugation of women, voting rights, and absolute equality.  But the immediate battle then raging was over slavery, and despite their efforts, women’s rights activists could not broaden the equal rights guarantees of the post-Civil War Amendments to protect women from discrimination as well as African Americans.

But other social reformers saw women’s rights as a tool.  Anti-liquor activists believed the women’s vote would support “dry” candidates for state and federal office, and ultimately would secure a constitutional amendment prohibiting the manufacture, transport or sale of alcoholic beverages.  A coordinated campaign began around the turn of the 20th century to secure women’s voting rights at the state level, in conjunction with the election of prohibitionist candidates and passage of state prohibition laws.  The impact is evident in this timeline – only four states (Wyoming, Colorado, Utah and Idaho) had guaranteed women the right to vote before 1910.  Eleven states and the territory of Alaska enacted women’s suffrage laws between 1910 and the ratification of the 19th Amendment in 1920.  Twelve more allowed women to vote for President – eleven extending this right in 1917-19, which not coincidentally was the period when both women’s suffrage and Prohibition underwent Constitutional ratification.

In 1923, Alice Paul wrote what became the modern Equal Rights Amendment at a second Seneca Falls meeting commemorating the meeting of 1848.  By this time, women had secured the right to vote and had been instrumental in the passage of Prohibition, and understandably women’s rights activists believed it was time to complete a constitutional guarantee of rights for women.

As with suffrage rights, a number of states adopted their own “ERA” type constitutional guarantees.  Some state laws were enacted independent of the ERA campaign, but a number of others were adopted during the decade of debate over the ERA when it came before the states in 1972.  Most state adopted ERA amendments between 1971 and 1978, when the campaign to adopt the federal Equal Rights Amendment (ERA) was at its height. The effort eventually failed, three states short of its final goal.

Even so, twenty states have adopted constitutions or constitutional amendments providing that equal rights under the law shall not be denied because of sex.  Some read like the ERA, but others are narrower.  For example California 1879 law (the nation’s earliest), guarantees equal rights to “entering or pursuing a business, profession, vocation, or employment.”

Supporters of ERA continue to argue its necessity, pointing out, among other things, continued pay inequities between men and women.  But others argue that a constitutional amendment could be both too broad and ineffective.  Larger social phenomena, such as the fact many women raise children, care for other family members, and for other reasons do not follow general male career trajectories go far to explain pay inequities.  ERA would bar discrimination based obstacles women face in the workplace, but labor laws, corporate policies, and negotiated conditions of employment already provide existing means to address those.

What laws and practices would ERA abolish?  Could there be unintended consequences?  Interestingly, labor reformers in the early part of the 20th century thought so.  They opposed efforts to abolish discrimination based on sex, because they believed it would jeopardize women’s gains in workplace conditions and hours.

Reasonable laws should recognize that women and men are physically different, and these differences can sometimes matter.  Pretending as if there were no differences in life expectancy, strength, metabolism, or estrogen would be irrational, even if in a strict sense “equal.”  If our legal regime protects men and women’s choices consistent with the rights of others — recognizing that those choices will not be identical — equality is better served than by imposing a flat guarantee of equal rights.

Allison R. Hayward is a political and ethics attorney in California

June 20, 2012 – Essay #88

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

http://vimeo.com/44317424

Proposed Amendment: Child Labor Ban Amendment:

Section 1: The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.Section 2: The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.

The Child Labor Amendment is a proposed and still-pending amendment to the US Constitution offered by Ohio Congressman Israel Moore Foster in1924, during the 68th Congress.

Perhaps one of the biggest political fights of the 20th century involved the question of whether the federal government had or should have authority to regulate child labor.  Alexander Hamilton and Horatio Alger stood on one side representing those who thought that child labor was a positive influence and on the other side stood influential novelist Elizabeth Stuart Phelps and a host of high society New Englanders who believed that this constituted a completely unnecessary and even ruinous exploitation of the nation’s youth.

Estimates varied about the size and scope of the problem.  The 1880 census reported that roughly 17% of all children were “gainfully employed.”  By 1910 that number had risen to nearly 19%.  However even at its highest point, the lion share of the youths working did so on a farm, and mostly that of their own families.  Fewer than 25% worked in canneries or any manufacturing plants.

The first state to restrict child employment was Massachusetts.  In 1836 they banned 15 year olds from manufacturing jobs and then six years later adopted a law making it illegal to allow 12 year olds to work for more than 10 hours a day.  By the turn of the century 28 states had adopted child labor laws.

However, leaders of the Teddy Roosevelt wing of progressivism within the Republican Party felt that state action was insufficient.  They argued that it was essential that the feds take over these regulations in order to make them uniform and also in order that the rules could be as aggressive as was practical to end the scourge of child labor.

Historians report that they started by trying to ban the interstate transport of articles produced in factories or mines that employed children under 14.  The Department of Commerce announced the creation of a Federal Children’s Bureau and began a full-throated contribution to the fight with updates and missives about the need for federal action.

Senator Albert Beveridge an early backer of a federal ban solicited and reported on the claims by known socialist agitators that there were thousands of “thumbless boys and girls who don’t know how to play.”

The promoters of federal action even went so far as to include a ban in the 1912 Republican platform causing President Taft to break with the party when he declared federal child-labor law unconstitutional.  Unfortunately by the time that President Wilson would come into office – even after having opposed the concept while campaigning – he would determine that it was expedient to sign a ban into law.  The Supreme Court would promptly strike down the measure arguing that “Freedom of Commerce will be at end, and the power of states over local matters may be eliminated” if the law were allowed to stand.

Nevertheless, Congress was undaunted.  Congress came back this time with a measure that proposed a 10% profits tax on all industries that violated the recommended child labor standards.  This too the Supreme Court struck down – this time 8-1.

It was then that the advocates decided that a Constitutional Amendment was in order.  Congressman Israel Foster of Ohio and Senator Samuel Shortlidge of CA introduced the measure.  They worded the amendment to cover not just employment, but work generally.  In other words, the amendment purported to give the federal government the power to intervene on behalf of any child under the age of 18 who was responsible for “chores” as well as those who actually worked at factories.

Starting off with support from the NEA, the American Legion, the YWCA, the PTA, and even Presidents Warren and Harding the amendment seemed unstoppable.

The Child Labor Amendment has been ratified by the legislatures of the following 28 states:

  1. Arkansas in 1924
  2. Arizona in 1925
  3. California in 1925
  4. Wisconsin in 1925
  5. Montana in 1927
  6. Colorado in 1931
  7. Illinois in 1933
  8. Iowa in 1933
  9. Maine in 1933

10. Michigan in 1933

11. Minnesota in 1933

12. New Hampshire in 1933

13. New Jersey in 1933

14. North Dakota in 1933

15. Ohio in 1933

16. Oklahoma in 1933

17. Oregon in 1933

18. Pennsylvania in 1933

19. Washington in 1933

20. West Virginia in 1933

21. Idaho in 1935

22. Indiana in 1935

23. Utah in 1935

24. Wyoming in 1935

25. Kentucky in 1936

26. Kansas in 1937

27. Nevada in 1937

28. New Mexico in 1937.

However, two arguments would ultimately stop the Child Labor Ban amendment in its tracks.  The first was the claim that alcoholism and drunkenness among fathers was the reason why so many young people were in the workplace.  And secondly, groups like the Women’s Constitutional League of Maryland effectively explained that at the end of the day, “The fathers and the mothers are better prepared to pass judgment upon the needs and the welfare of their children than this Congress is.”

A new opposition coalition developed made up of the Catholic Church, farmers, and ordinary families.  Together along with the claim that most of the “childsavers” were childless caused much of the momentum to slow and then ultimately reverse.

In true ironic fashion, it was Massachusetts where the amendment would face its major defeat.  The Archbishop of Boston mounted a vigorous campaign against the amendment as being anti-family and claimed that it would “take from parents the right and duty to educate and guide their children.”  Suddenly the Lutherans joined in the effort.  An advisory referendum was scheduled for the state and the amendment lost in a lopsided vote 697,563 to 241,461.  This was the beginning of the end.

Perhaps the most significant consequence of the introduction of the Child Labor Ban Amendment is that the right of the people to determine ultimately what the policies and rules of their nation would be remain with the people through the state legislatures.  In a landmark case, Coleman v. Miller the US Supreme Court in a dispute over the Child Labor Ban Amendment officially recognized that if Congress does not specify a ratification deadline, then the proposed amendment remains pending business.  Today, with 50 states in the Union, the ratifications of 10 additional states would be required to incorporate the proposed Child Labor Amendment into the Constitution.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 19, 2012

Essay #87

 

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

http://vimeo.com/44223606

Proposed Amendment: Slavery and the States Amendment:

State’s sole right to regulate slavery proposal:

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

This proposed amendment is the so-called Corwin Amendment.  Passed by the 36th Congress on March 2, 1861, the Corwin Amendment offered by Ohio Representative Thomas Corwin was presented as a means of forestalling the secession of Southern states prior to the beginning of the Civil War.

It had become increasingly clear to many in Congress that a conflict was occurring over the status of slave versus non-slave states that could have cataclysmic effects on the Union.  In the 36th session alone, there were more than 200 different measures introduced regarding the subject of slavery including nearly 60 Constitutional amendments.

The Corwin Amendment sought to forbid any future attempts to amend the Constitution to empower the Congress to “abolish or interfere” with slavery as a way to ensure that southern states would not feel obligated to leave the American Union.  Presented as a last ditch effort to prevent the collapse of the Union, the proposal didn’t have the intended effect.  The newly formed Confederate States of America organized and declared that it would pursue a path of independence completely ignoring Congress’ intentions with the Corwin Amendment.

Notably the Corwin Amendment has the distinction of being the only constitutional amendment to have an actual numerical designation assigned to it by Congress—the proposing resolution includes the name “Article Thirteen.”

After passing the House and Senate, congressional leaders prevailed upon incoming President Lincoln to send a letter to each governor alerting them that the amendment had passed.  While President Lincoln never endorsed the measure, he acquiesced to the request.

By the time President Lincoln had been elected, seven southern states had seceded and within a few months four others would join them.  While Lincoln had not campaigned on a platform to end slavery where it existed, he had pledged to use the power of the federal government to prevent slavery from spreading to territories that were not yet states.  His willingness then to send the letter was yet another demonstration of the lengths he was attempting to go to prevent the dissolution of the union.

Ohio has the distinction of the being the first legislature to ratify the amendment on May 13, 1861.  However by March 31, 1864 the commencement of the Civil War and changing public sentiment led the legislature to rescind its ratification.  Since Congress did not include a final ratification date for this proposed amendment, it technically is still pending.  In 1963 more than a century after it was ratified, Texas state representative Henry Stollenwerck introduced a resolution to ratify in the Texas statehouse.   It was referred to the House of Representatives’ Committee on Constitutional Amendments on March 7, 1963, and received no further consideration.

It is noteworthy that the Confederate Constitution contained no provision like that found in the Corwin amendment.  Even though the Confederate charter explicitly authorized slavery in the Confederacy, it didn’t seek to prevent or bar future amendments that might restrict or abolish slavery.

Most scholars believe that even if the Corwin Amendment had been adopted it would not have been irreversible.  That is to say, Congress and the states could bar Congressional interference with slavery if they wanted but they couldn’t bar a subsequent Congress and the states from either repealing the amendment the same way they did when they adopted prohibition and then repealed it later or adding new amendments that had the same effect.  In other words, the mere adoption of the Corwin Amendment would not have prevented a subsequent Congress from passing an amendment to ban slavery or to protect the voting rights of blacks who were formerly slaves.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 18, 2012

Essay #86

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

http://vimeo.com/44084644

Proposed Amendment: Titles of Nobility Amendment:

If any citizen of the United States shall accept, claim, receive or retain, any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them

Introduced in 1810, the so-called Titles of Nobility Amendment (TONA) was sponsored primarily by Maryland Senator Philip Reed.  Historians argue that this amendment’s purpose was two-fold.  One to make it more difficult for foreign agents to buy or influence votes in state and federal elections, and secondly to prevent saboteurs and enemies of America from promising land, wealth, and titles to officers in the military or other prominent appointees in government as a way to undermine their loyalty to the United States.

Senator Reed, the primary sponsor, was quite a character.   A revolutionary war hero, purportedly during the battle of Stony Point, he cut off the head of an American deserter and had it displayed on a pike as a deterrent to other deserters.

As a Senator from Maryland, Senator Reed and his constituents were keenly aware of the younger brother of French Ruler Napoleon Bonaparte’s marriage to the daughter of wealthy Baltimore merchant William Patterson.  Jerome Bonaparte’s marriage to Elizabeth Patterson (the Paris Hilton of her day) not only scandalized Northeastern American society, suggestions that the marriage would result in a lifetime annuity and a title for Ms. Patterson and her heirs was sufficient to remind American leaders of the need to minimize the ability of foreigners to influence American society and its political structure.

Primarily supported by Federalists, the amendment’s substance galvanized the Congress getting broad support.  The resolution passed both houses of Congress in 1810: the United States Senate by a vote of 19 to 5 and by the House of Representatives by a vote of 87 to 3.  It was sent to the states and awaits action for ratification.   According to the Supreme Court, in a case entitled Coleman v. Miller, the amendment is still available to be considered and ratified by the various states, as there is no deadline for ratification specified when Congress initially proposed the amendment.  As least 26 more states would have to ratify the amendment in order for it to become part of the Constitution today.

This amendment was ratified by 12 state legislatures:

1.  Maryland (December 25, 1810)

2.  Kentucky (January 31, 1811)

3.  Ohio (January 31, 1811)

4.  Delaware (February 2, 1811)

5.  Pennsylvania (February 6, 1811)

6.  New Jersey (February 13, 1811)

7.  Vermont (October 24, 1811)

8.  Tennessee (November 21, 1811)

9.  North Carolina (December 23, 1811)

  1. Georgia (December 31, 1811)[1]
  2. Massachusetts (February 27, 1812)
  3. New Hampshire (December 9, 1812)

Senator Reed lived to be 69 years of age, dying in 1829.  A memorial marks his grave to this day as one of Kent Maryland’s most distinguished citizens.

Today the only controversy about this so-called “Titles of Nobility Act” is whether it was already ratified.  Historians overwhelmingly agree that the amendment was not ratified.  In 1833, the brilliant and highly regarded judge and commentator Joseph Story wrote “it has not received the ratification of the constitutional number of states to make it obligatory, probably from a growing sense, that it is wholly unnecessary” and the 1848 edition of Bouvier’s Law Dictionary recorded that TONA “has been recommended by Congress, but it has not been ratified by a sufficient number of states to make a part of the constitution.”

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 15, 2012

Essay #85

Guess Essayist: David Eastman, 2011 Claremont Institute Abraham Lincoln Fellow

http://vimeo.com/44015708

Before we conclude our 90 Day Amendment Study, we now take a look at some pending Constitutional Amendments, which have not been adopted:

The first in this short series is an amendment on Congressional Apportionment – Essayist: David Eastman, 2011 Claremont Institute Abraham Lincoln Fellow

Proposed Congressional Apportionment Amendment

“After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

Few today may be able to tell you, but the most immediate concern in the minds of many Americans following the adoption of the Constitution was not first amendment rights concerning freedom of speech, but rather first amendment rights concerning the number of representatives in Congress. And though it receives comparatively little attention in our own day, it was this issue that the Congress was compelled to tackle in the very first constitutional amendment it adopted (September 25, 1789).

Concerns over congressional apportionment predated ratification of the Constitution and were the subject of fully three of the Federalist Papers, in one of which Madison remarked “Scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention by the weight of character and the apparent force of argument with which it has been assailed” (Federalist 55). The initial apportionment scheme that generated such high-spirited controversy was as follows:

“The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative…”

New Hampshire (3)
Massachusetts (8)
Rhode Island (1)
Connecticut (5)
New York (6)
New Jersey (4)
Pennsylvania (8)
Delaware (1)
Maryland (6)
Virginia (10)
North Carolina (5)
South Carolina (5)
Georgia (3)
Total (65)

Madison defended this portion of the proposed Constitution against a two-pronged attack: first, that the number of representatives in Congress, being too few, was inadequate to prevent corruption of the legislative body; and second, that such a number would deprive the body of sufficient knowledge owing to the inability of members of Congress to effectively represent such a large number of constituents. Also relevant was the concern that if the House of Representatives were ever to become too numerous, its character as a representative body would be undermined. Despite Madison’s best efforts to answer these concerns, they persisted, leading several states to propose amendments to this portion of the Constitution, which they submitted to the Articles Congress with their respective ratification documents.

These, and other requests submitted by the states, resulted in the first twelve amendments passed by the United States Congress and submitted to the states on September 25, 1789. Ten of the twelve were soon adopted as the Bill of Rights, and the eleventh would lay silently awaiting ratification until approved by the State of Michigan and finally added to the Constitution 202 years later, on May 7, 1992.

The twelfth and final amendment, the Congressional Apportionment Amendment, was ratified by a majority of states at the time of its passage, but less than the three-fourths required for adoption. This could be due in part to a transcription error that resulted in a mathematically impossible apportionment formula once the population of the United States reached 8 million and before it reached 10 million. The apportionment scheme now in use is determined by Congress, in keeping with the original text of the Constitution.

As it has already secured the approval of Congress, the Apportionment Amendment could follow the path taken by the 27th Amendment and be adopted if ratified by additional states. However, its passage today is unlikely, not only due to the passage of time but also due to the fact that approval would be of limited practical effect as the scheme currently approved by Congress is already in harmony with the Amendment. It seems Congress has been successful, at least as concerns this particular amendment, in fixing a number that is neither so numerous that passions become unwieldy, nor so few that states come to question the ability of their representatives to be independent voices amidst the representatives of other states.

David Eastman is a former U.S. Army Captain, a Claremont Lincoln Fellow. He can be reached at david@davideastman.org.

June 14, 2012

Essay #84

Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

Amendment XXVII:

No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.

The 27th Amendment states that any law Congress passes that alters their compensation cannot take effect until after the next election.

On September 25, 1789, Congress proposed twelve constitutional amendments. In a little over two years, ten of these were ratified by the states. These very first amendments to the Constitution became our revered Bill of Rights.

The first rejected amendment proscribed a complex formula for determining the size of the House of Representatives. The second failed amendment, known as the Compensation Amendment, was written by James Madison in response to Antifederalist claims that Congress possessed the power to vote themselves rich salaries. Although this amendment failed in 1791, it eventually became the 27th Amendment.

The 11th Amendment took less than a year to ratify. Prohibition (18th Amendment) took 14 months, while repeal (21st Amendment) took only nine months. Women’s suffrage (19th Amendment) took 14 months to ratify. Giving 18 year olds the right to vote (26th Amendment) took only a little over three months. So why did it take 203 years to ratify the 27th Amendment?

In 1791, Americans didn’t see compensation of Congress as a big issue—at least, not enough of an issue to threaten liberty. If Congress became too greedy, voters would simply throw them out of office. In 1873, Congress did vote itself a retroactive raise. In a pique, Ohio ratified the Compensation Amendment. No other states followed suit, so the amendment languished—until the 1980s. Surprisingly, a grassroots campaign was ignited by an undergraduate term paper written by Gregory Watson. (He received a C grade for the paper.) On May 7, 1992, the Compensation Amendment was finally ratified by enough states to make it officially the 27th Amendment.

The irony is that this two-century process may have been made meaningless by later court decisions. Since the amendment was ratified, the only court challenge claimed that the annual Cost of Living Allowance (COLA) violated this amendment. A few taxpayers and a congressman filed suit, but a lower court ruled that the taxpayers did not have standing (standing is a legal interest in the issue that entitles the party to seek relief).  It further ruled that an automatic COLA was not an independent law subject to the amendment. On appeal, the Tenth Circuit ruled that the congressman also did not have standing. If neither taxpayers nor congressmen have standing, it’s hard to imagine a successful challenge.

Madison had crafted a clear, single sentence that 203 years later became part of the Constitution. It’s doubtful that Congress would be foolish enough to violate this minor restriction on their pay increases.

We often hear laments that our politicians no longer honor their pledge to preserve, protect and defend the Constitution of the United States.  This is backward.  The Constitution was not written for politicians.  Our political leaders have no motivation to abide by a two hundred year old restraining order.  Americans must enforce the supreme law of the land.  The first outsized words of the Constitution read We the People.  It’s our document. It was always meant to be ours, not the government’s.  It is each and every American’s obligation to preserve, protect, and defend the Constitution of the United States.

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

June 13, 2012

Essay #83

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

Amendment XXVI:

Section 1:  The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

Section 2:  The Congress shall have the power to enforce this article by appropriate legislation.

 

18-Year Olds Right to Vote

Section 2. The Congress shall have the power to enforce this article by appropriate legislation.

 

Perhaps one of the few instances where the issue of congressional power was litigated prior to passage of the amendment, section 2 of the 26th amendment has this distinction.  Many Americans today do not realize that the debate over the minimum age to vote in the U.S. began during World War II and the issue continued to grow even as the War wound down.  President Dwight Eisenhower was the first U.S. president to officially endorse lowering the voting age to 18.  For most of its history, the U.S. had adopted 21 as the minimum age.

President Eisenhower, like a growing number of American policymakers, recognized a clear disparity between 18 year olds being old enough to fight for their country in war and yet they were not considered responsible enough to cast a vote in electing the representatives that could decide the policy.  This sensible argument was powerful enough to persuade Georgia and Kentucky to lower the minimum voting age during World War II.

Unfortunately the process of state-by-state reform didn’t appear to be moving fast enough for its advocates.  By the time of the Vietnam War, it had become increasingly clear that Congress had to take some action in this area.  Between the budget pressures, anti-war efforts, and the need to rely on the draft, Washington policymakers determined that they should act affirmatively to lower the voting age.

Taking the lead nearly 20 years after serving as Vice-President to President Eisenhower, President Nixon agreed to sign a law that amended the Voting Rights Act to lower the voting age to 18 for all Federal, State, and local elections.  There was a problem with this solution:  it didn’t meet Supreme Court muster.

The act signed into law in 1970 was challenged in the federal courts.  In Oregon v. Mitchell the Supreme Court declared that the Congress didn’t have the authority to set a minimum age requirement for voting in state and local elections.

President Nixon would then call upon Congress to adopt a Constitutional amendment to remedy the matter. It passed Congress in March 1971 and would set a record – 4 short months – as the fastest ratification of any of the amendments to the Constitution.  By July, President Nixon would certify that the amendment had indeed been ratified.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 12, 2012

Essay #82

Guest Essayist: Janice Brenman, Attorney

http://vimeo.com/43824641

Amendment XXVI:

The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

The Twenty-Sixth Amendment: Empowering America’s Youth

Throughout our nation’s history the right to vote has remained a cornerstone of cherished civil liberties and democratic processes.  This right, however, was granted to select members of the populace until a century and a half ago. The end of the Civil War brought about 3 “Reconstruction Amendments” aimed to bring constitutionally granted “blessings of liberty” to the black male populace – the 3rd of these, the 15th Amendment, ratified in 1870, granted voting rights regardless of “race, color, or previous condition of servitude.”  Half a century later, women were also granted the right to vote, after various organizations staged a protracted series of processions and protests.  Several countries, such as Sweden, Finland (then known as the Grand Duchy (Dutch-ee)), Britain and Australia, had already forged ground in this area at the end of the 19th century.  The resulting 19th Amendment was ratified in 1920, which prohibited state and federal sex-based voting restrictions.  Additional suffrage privileges were granted with ratification of the 24th Amendment in 1964 – which guaranteed that voting rights of citizens

“shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”

Age was the next obstacle to overcome.

The Constitution allowed states to dictate voting qualifications, subject to restrictions incorporated into Amendments.  One of these Amendments, the 14th, mandated an age 21 minimum for male suffrage, with the caveat of withholding any state’s representation in Congress should this right be denied.  With the onset of World War II, many young men and women under age 21 entered military service, sparking discussions about reducing the voting age to 18.  It seemed ironic that one could be called up for military service at 18 and denied the right to vote for the country one was entrusted to defend.  So, in 1942, four Congressmen introduced resolutions to reduce the age to 18.  Over 150 proposals were initiated, some setting the age to 19.  In the early 1950s, Senate debated one of “18” resolutions, but it failed by a vote of 34 to 24.  By the late 1960s, the Vietnam War was rapidly escalating and thousands of young Americans enlisted, or, were drafted for active duty overseas.  As of 1968,  25% of the troops were under age 21 and made up an even higher percentage of casualties.  ‘Old enough to fight, old enough to vote’ became a mantra for the burgeoning Baby Boom generation.

The resolutions for lowering the voting age began to gain momentum once again.  Congress held hearings on the subject between 1968 and 1970. These hearings touched on the link between military service and voting, but primarily focused on the increased educational levels of modern youth.  Their discussions also focused on the ever-increasing responsibilities of the 18-21 year old demographic: attending college, driving automobiles, drinking alcohol (in subsequent years, states raised this age to 21), holding jobs, starting families, being tried as adults in court.  Concurrently, in a narrow 5-4 vote, the United States Supreme Court ruled in Oregon v. Mitchell (1970) that 18 year olds could vote in federal elections, but not in those held at the state, or, local levels.

States now were tasked with evaluating their suffrage-age laws, and sixteen states did just that in 1970.  Six states lowered the age and ten remained unswayed.  Other states began to weigh administrative and cost advantages in matching the new federal framework.  Congress then added a provision to the Voting Rights Act in 1970 setting the minimum voting age to 18 for both national and state elections, arguing it had broad power to protect voting rights under Section 5 of the 14th Amendment.  With that, Congress accelerated its commitment to incorporate the youth suffrage movement within the framework of the Constitution.  Congress passed the 26th Amendment March 23, 1971. In the fastest ratification process on record (107 days), three fourths of the states ratified this landmark proposal July 1, 1971.

Note: Amendment 14, section 2, of the Constitution was modified by section 1 of the 26th amendment.

Ms. Janice R. Brenman is a former prosecutor now in private practice in Los Angeles. She has commented in major legal publications on the subject of legal reform and celebrity influence on the legal system. She has also appeared in medical malpractice, products liability and complex civil litigation, and is well versed in all forms of discovery.  From 1999 to 2000, Ms. Brenman was a City Prosecutor and Community Preservationist. She clerked for the Honorable Rupert J. Groh(Grow), Jr., of the United States District Court for the Central District of California. Ms. Brenman also worked researching, writing and editing under a Nobel Prize winning laureate.

June 11, 2012

Essay #81

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

http://vimeo.com/43652085

Amendment XXV, Section 4:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Section 4 is the only part of the 25th amendment which has never been invoked. It was created especially to empower the Vice President, together with a majority of the Cabinet or of “such other body as Congress may by law provide”, to declare when necessary that the President of the United States is disabled. This would occur by formally submitting a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives. Upon its delivery, the Vice President would become Acting President.

Section 4 is meant to be invoked if Vice President and the Cabinet determine that the President’s incapacitation prevents him from discharging the duties of his office and the President does not voluntarily proffer a written declaration to that effect.

Since this provision may involve a conflict between the President and the rest of his administration there are safeguards to prevent the invocation occurring unfairly. Therefore, the President may resume exercising his Presidential duties in response to the Vice President’s declaration by sending a written declaration to the President pro tempore and the Speaker of the House explaining that he is able to assume his duties.

It is only then that if the Vice President and Cabinet remain unsatisfied with the President’s condition, they may within four days submit another declaration to the House Speaker and the Senate President Pro Tempore that the President is incapacitated.

If this occurs, Both Houses of Congress must assemble within 48 hours if not already in session to make a determination. Within 21 days of assembling or of receiving the second declaration by the Vice President and the Cabinet, a two-thirds vote of each House of Congress is required to affirm the President as unfit. Upon this finding by the Congress, Section 4 states that the Vice President would “continue” to be Acting President.

Should the Congress resolve the issue in favor of the President, or if the Congress makes no decision within the 21 days allotted, then the President would “resume” discharging all of the powers and duties of his office.

If for some reason the Congress sides with the President yet the Vice President and Cabinet determine later that the President is incapacitated, the Vice President can continue to invoke Section 4. The President could send a declaration stating that he is capable of handling his duties and presumably the allotted 21-day Congressional procedure would start again..

History notes that there have been at least two occasions where there was serious consideration of invoking Section 4. The first involved the March 30, 1981 assassination attempt against Ronald Reagan. A group of Presidential advisors gathered at his bedside following his surgery and in conjunction with the doctors findings, determined that he was competent to carry on the affairs of state. The second occasion also involved President Reagan.

Late in his term, President Reagan replaced his chief of staff – Donald Regan – with Howard Baker. Howard Baker was pressed according to media reports to make an assessment as to whether President Reagan then 76 was “mentally sharp.” After holding a meeting with the President and the rest of his staff, Baker easily concluded that President Reagan was capably handling his duties as President.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 8, 2012

Essay #80

Guess Essayist: Horace Cooper, legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

Amendment XXV Section 3

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Since the nation’s founding there have been lingering questions about the presidential succession process.  As drafted by the framers, Article II of the U.S. Constitution provided that the vice president shall “discharge the Powers and Duties” of the president in the case of the president’s “Death, Resignation, or Inability.”

Seemingly clear enough in 1787, it increasingly became obvious there were serious gaps in the process.  Congress was given the responsibility to work out the details for what might occur if both the Vice President and President were incapacitated.  At the same time the Constitution was opaque over what constituted inability or scenarios in which a previously incapacitated President might have his authority restored.

Until the 25th amendment was ratified, the vice presidency had been vacant 16 times after a president or vice president had died or resigned. *

President Garfield tragic assassination was a major case in point regarding Presidential Succession.  Assassin Charles J. Guiteau disgruntled over not being able to obtain a federal post shot President Garfield.  The president would slip in and out of comas over the next 80 days.  As a result he would perform only one official act during this period – the signing of an extradition paper. President Woodrow Wilson was disabled by a stroke in 1919–1921. Many presidents have suffered shorter periods of disability. In no instance were the disability provisions invoked. *

Many in Washington thought that President Eisenhower’s heart attack in 1955 and then subsequent stroke in 1957 made clear that the modern presidency needed a succession plan.  However, the subsequent campaign between Nixon and Kennedy, either of whom would set the record for youngest president in US history moved the issue to the back burner.

Ironically, it was the assassination of President John F. Kennedy in 1963, which brought the issue immediately to the forefront.  This far into the 20th century the United States couldn’t answer long-standing questions such as when the president died, did the vice president automatically become president, or only serve as acting president? What happened when the vice presidency was vacant?  The Twenty-fifth Amendment, would at long last answer these questions.

Stymied during the Eisenhower administration, this time the urgency was clear.  Even The American Bar Association endorsed the proposal.  On January 6, 1965, Senator Birch Bayh formally proposed the amendment.  It was passed by Congress on July 6, 1965, and ratified on February 10, 1967, making it the 25th Amendment to the Constitution.

Reportedly Presidents G HW Bush and Bill Clinton established detailed plans in compliance with Section 3 to deal with incapacity during their terms although ultimately they never needed to be invoked.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

*  THE TWENTY-FIFTH AMENDMENT: ITS COMPLETE HISTORY AND APPLICATIONS,” BY JOHN FEERICK (1992)

June 7, 2012

Essay #79

Guest Essayist: Hadley Heath, Senior Policy Analyst at the Independent Women's Forum

http://vimeo.com/44178578

Amendment XXV, Section 2:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

The 25rd Amendment, Section 2, explains that in a vacancy in the office of Vice President, the President must act to select a new Vice President, and the Congress must confirm the President’s choice.  More broadly, this Amendment (ratified in 1967) clarifies the line of succession in the executive branch as established in Article II of the Constitution.

Without this Section or this Amendment, it was unclear what to do in the case of a Vice Presidential death or disqualification.  Would the Speaker of the House ascend to this office?  Would the people elect a new Vice President?  Actually, neither happened.  But before the 25th Amendment, the office of the Vice President was simply left vacant 16 times, and it stayed that way until the next election.

Eight times the President of the United States died, and the Vice President left office to become President.  Seven times the Vice President died.  Once, Vice President John Calhoun resigned in order to become a U.S. Senator.

But for the sake of continuity, and in order to keep the important office of Vice President filled, the U.S. ratified this Amendment.  It makes it clear that the President will nominate someone, and the Congress will confirm.  The Congressional confirmation also ensures that the people have a representative voice in approving the new Vice President.

After all, the office of the Vice President carries with it unique Constitutional duties and shouldn’t be left empty.  According to Article I of the Constitution, the Vice President also serves as President of the U.S. Senate, and must cast a vote if there is a tie.  The Vice President is also charged with overseeing, counting and presenting the votes of the Electoral College.

The Vice President also serves an important informal role as the assistant to, or spokesperson for the President.  This role varies from administration to administration, depending on the relationship between the two leaders.

In American history since 1967, only two back-to-back occasions have called for the selection of a Vice President in the manner prescribed by Amendment XXV.  In 1973, Vice President Spiro Agnew resigned.  President Richard Nixon nominated Gerald Ford to the Vice Presidency, and Congress confirmed him.

The following year, 1974, President Nixon resigned.  This meant that Gerald Ford would ascend to the Presidency, allowing him to select a nominee for Vice President to fill his now-vacant office.  He selected Norman Rockefeller, who was also confirmed by the Congress.  This situation resulted in both a President and a Vice President who were not elected in a general election by the Electoral College.

Elections are essential to the American system of governance: They allow the people to select their own leaders.  But, on the rare occasion that these elected leaders cannot perform their duties, Amendment XXV prescribes how new leadership will take charge.

Amendment XXV, Section 2, ensures that the people are at least represented in the selection of this new leadership; the requirement of the new Vice President’s confirmation by Congress means that Members of the House and Senate – the representatives of the people – can check the power of the executive in making this new appointment.

This Section of Amendment XXV serves the important purpose of maintaining the offices of President and Vice President in a manner consistent with government for, of, and by the people.

Hadley Heath is a Senior Policy Analyst at the Independent Women’s Forum.

June 6, 2012

Essay #78

Guest Essayist: Hadley Heath, Senior Policy Analyst at the Independent Women's Forum

http://vimeo.com/43441510

Amendment XXV, Section 1:

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

The 25th Amendment was ratified in 1967 to clarify the Presidential line of succession established in Article II of the Constitution.  For the sake of national security, and to avoid the turmoil of contested authority – with which the Founders were familiar after a revolutionary war – the new nation established a clear, indisputable contingency plan in the case of a Presidential death, resignation, or removal from office.

This provision in the Constitution points to the underlying idea that America’s destiny does not live or die with one person or one leader, but that she is always ready to continue thriving, even in the face of a national tragedy or crisis.

Fully nine U.S. Vice Presidents have come to the office of President in this way – eight because of the death of a President.  One occasion, the resignation of President Richard Nixon, resulted in Vice President Gerald Ford taking the office of President in 1974.  This has also been the only such occasion (of a Vice President ascending to the office of President) that occurred after the ratification of Amendment XXV.

Previous to this Amendment, the nation looked to Article II, Clause 6 for guidance.  This clause states that in case of a Presidential disqualification or death, the “powers and duties” of the President will devolve to the Vice President.  However, the language of this clause left unclear whether the Vice President would indeed become the next President, or if he would simply execute the duties of the office until a new President could be elected.

Precedent resolved this controversy, when the first Presidential death occurred in 1841.  President William Henry Harrison died in office, and Vice President John Tyler took the oath of office to succeed him as President.

Amendment XXV finally clarified in supreme Constitutional law that the successor to the office of President would indeed become President, not simply become “acting President.”

Because they are established as first in line for succession, the Vice Presidents of the United States are subject to the same eligibility requirements as Presidents.  According to Article II of the Constitution, these requirements are that the person be a natural-born citizen, at least 35 years old, and have spent at least 14 years residing in the U.S.

The Constitution gives Congress the authority to further define the line of succession.  The Presidential Line of Succession Act of 1947 established that the next successors would be the Speaker of the House of Representatives, the President Pro Tempore of the Senate, followed by the members of the Presidential Cabinet in order of their department’s establishment.

The 25th Amendment – along with Article II of the Constitution and the Presidential Line of Succession Act – make provision for the United States to have continuous leadership, even in the event of the disqualification or death of the national leader.  This important establishment, in law, is meant to guarantee a peaceful and seamless transition.

So far in our history, although the occasions have been rare, this part of our government’s structure has provided new leadership in the face of national tragedy and hardship.  This clearly serves to underscore the American idea that the future of our nation is not in the hands of one man or one executive, but that as a people we’ve consented to the leadership of duly elected and vetted leaders, as designed by the Constitution.

Hadley Heath is a Senior Policy Analyst at the Independent Women’s Forum.

June 5, 2012

Essay #77

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/43382879

Amendment XXIV:

1:  The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

2:  The Congress shall have power to enforce this article by appropriate legislation.

A poll tax is an ancient device to collect money. It is a tax on persons rather than property or activity. As a regressive tax from the standpoint of wealth, it is often unpopular if the amount at issue is steep. But it can also be unpopular for other reasons.

In the United States, such a capitation tax was assessed in many states on the privilege of voting. Amounts and methods varied. One of the last poll taxes of this type, that of Virginia, was just $1.50 per person at the time it was struck down by the Supreme Court in 1966. That is not more than $10.00 in current money, hardly an exorbitant price, except for the truly destitute. But the problem was more than the amount. It was the manner of administration.

The common practice was to require that the tax be paid at each election, and that a potential voter demonstrate that he had paid the tax for a specified number of previous elections. If not, those arrearages had to be paid to register to vote in the ongoing election. The effect of the tax was to hit many lower income groups, but primarily Southern blacks, whose participation in elections dropped to less than 5% during the first part of the 20th century. To be sure, that low rate of participation was not entirely due to the poll tax, but that tax was a particular manifestation of a regime of suppression of political participation by blacks.

The 15th Amendment had been adopted to prohibit overt racial discrimination in qualifying to vote. However, the poll tax and other restrictive measures, such as literacy tests, were not, strictly speaking, race-based, so they did not come within the 15th Amendment. A different solution was needed, according to those who saw the poll tax as intolerable. Literacy tests, if fairly administered (though often they were not), had a clear connection to the responsible exercise of the voting franchise that poll taxes lacked. After all, especially in those years before the electronic media, having a literate electorate was a significant community interest. Republican theory has traditionally looked to having those with the most interest and highest stake take the leading role in the community. Literacy provided a foundation to acquire the knowledge needed for a wise and effective participation in res publica. Poll taxes, on the other hand, are just revenue-raising devices, and, since they are applied equally per capita, they are removed from republican considerations of having those with the highest economic stake in society direct the political affairs of that society.

Opposition to the poll tax increased during the 1930s and President Roosevelt briefly attacked it in 1938. But FDR had to be mindful of the powerful influence of Southern Democratic barons in the Senate and the crucial role that the Southern states played in the politically dominant Democratic coalition. By the 1940s, the House of Representatives passed legislation to outlaw poll taxes but a Southern-led filibuster in the Senate killed the effort. By 1944, the Republican Party platform and President Roosevelt (though not his party’s platform) called for the tax’s abolition.

Eventually, qualms arose about using ordinary legislation to block the tax. Article I of the Constitution places principal control over voter qualification in the hands of the states. The 15th Amendment (race) and the 19th Amendment (sex) had limited the states’ discretion. To many—even opponents of the poll tax—the message from those amendments was that limitations on state power had to proceed through specific constitutional amendment. The opinions issued by the Supreme Court seemed to echo those sentiments, as the Court had accepted the predominant role of the states in that area even when it struck down the racially-discriminatory “white primaries” in the South in the 1940s and 1950s. The debate allowed Southern supporters of the poll tax to characterize the controversy as a states’ rights issue.

The effort to adopt a constitutional amendment to ban poll taxes dragged on through the 1950s into the 1960s, even as support for the tax grew weaker. Literacy tests remained widespread, even in the North. But Southern states, too, abandoned poll taxes until, in 1960, only 5 states retained them. Finally, in March, 1962, the Senate approved what would become the 24th Amendment. This time, no Southern filibuster occurred. In August of that year, the House concurred. The concerns over state sovereignty remained, in that the amendment proposed to abolish poll taxes only in federal elections, leaving states and municipalities free to continue the practice for their internal affairs.

When the amendment was sent out to the states, every state of the old Confederacy, but two, refused to participate, still portraying the matter as a states’ rights issue. The two exceptions were Mississippi, which formally rejected the amendment, and Tennessee, which approved it. Outside the South, every state adopted the amendment between November, 1962, and March, 1964, except Arizona and Wyoming.

But, as mentioned, states were still free to adopt poll taxes for local elections. This apparently was a call to action for the Supreme Court. Casting constitutional caution to the wind, the Court in Harper v. Virginia Board of Elections in 1966 struck down the Virginia poll tax for state and local elections. Creating an odd alloy of different constitutional concepts, due process and equal protection, Justice William Douglas announced for the majority that poll taxes impermissibly discriminated on the basis of wealth and/or improperly burdened a fundamental right to vote. In any event, the opinion announced, the Virginia tax violated the 14th Amendment.

The Court obviously was aware of the 24th Amendment, so recently adopted. But the learned justices must have found the effort to amend the Constitution through the proper Article V process unsatisfying. It appears that the 24th Amendment, having been limited to federal elections to avoid further intrusion into state sovereignty over voting qualifications, was not constitutionally rigorous enough. The Constitution, as it thus stood, was unconstitutional in the eyes of the Supreme Solomons. If the Court was right in Harper, members of Congress and of the state legislatures could have saved themselves much trouble and just used the 14th Amendment to declare all poll taxes unconstitutional. Congress could have accomplished the goals of the 24th Amendment, and more, just by passing a law to enforce these supposed rights protected under the 14th Amendment.

Of course, traditionally the 14th Amendment was not understood to provide direct restrictions on state control of voting qualifications. Otherwise, the 15th Amendment, as it applies to states, would have been unnecessary. The Court had used the 15th Amendment to strike down certain voting restrictions on race earlier in the 20th century, and did not even begin to take gingerly steps towards the 14th Amendment until striking down the “white primaries.”

Not much significance, other than as a symbol and a constitutional curiosity remains of Harper. The Court since then has repudiated the notion of wealth as a constitutionally “suspect” classification entitled to strict judicial scrutiny under the equal protection clause. As well, the notion of voting as a fundamental right protected under the due process clause, has had a checkered history.

Rights conceptually are “fundamental” if they do not depend on a political system for their existence; they are “pre-political” in the sense of the Anglo-American social contract construct that the Framers accepted. Freedom of speech and the right to carry arms for self-defense come to mind. Voting is an inherently political concept that does not exist outside a political commonwealth, and the scope of the voting privilege (that is the meaning of “franchise”) is, necessarily, a political accommodation. Even republics, never mind monarchies, have no uniform understanding of who may be qualified to vote. The great historical variety of arrangements of republican forms of government, and the inherently political nature of defining them, is one reason the Supreme Court has not officially involved itself in defining what is a republican form of government guaranteed under the Constitution.

A final word about the 24th Amendment: Historically, many republics, including the states in our system, required voters to meet designated property qualifications, as a reflection of having a sufficient stake in the community to vote responsibly (and to pay for the cost of government). Strictly speaking, the 24th Amendment does not forbid those. The Supreme Court has upheld property qualifications for voting for special governmental units, such as water districts. One wonders, whether the abolition of such qualifications, if they were required in all elections, would need a constitutional amendment today, or whether the Supreme Court would just wave the magic wand of the 14th Amendment, as it did in Harper.

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

June 4, 2012

Essay #76

 

 

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XXIV, Section 1:

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

In an effort to circumvent the Fifteenth Amendment’s requirement that the States not deprive a citizen of the right to vote based on race, in the decades from 1890 to 1910 some States began implementing various requirements which were purportedly neutral regarding race but which had the (intended) effect of preventing black citizens from voting. One of the requirements was a poll tax, a specific fee for voting that prevented the poor from voting. (Often the laws were written in a way that would allow white citizens to vote without paying the fee or implemented in this way, such as where a politician bought votes by paying poll taxes for the voters.)

As the moral wrongness of this kind of restriction became harder to deny, States began to remove some of these requirements. Some States had repealed their poll taxes by World War II and others removed them for soldiers in the 1940s. As the national government became more involved in promoting civil rights and ending racial discrimination in the 1950s, the number of states with poll taxes was down to five (Alabama, Arkansas, Mississippi, Texas, and Virginia).

In 1959, the report of the Commission on Civil Rights (created by the Civil Rights Act of 1957) suggested a national law to allow all Americans to vote subject only to age and residency requirements. One result was the proposal of an amendment to the Constitution to specifically prohibit the imposition of poll taxes. President John F. Kennedy supported the “uncontroversial” amendment. The lack of controversy stemmed from the fact that only five States had such taxes.

Federal courts had previously held poll taxes were not prohibited by the Constitution, so an amendment was necessary. Congress proposed the amendment in August 1962 and it was ratified less than a year and a half later in January 1964.

The Twenty-fourth Amendment only applied to federal elections but not long after its ratification, the U.S. Supreme Court ruled that poll taxes in State elections were unconstitutional because they discriminated against the poor. Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) at http://scholar.google.com/scholar_case?case=10289081725638058283&q=harper+v.+virginia+state+board+of+elections&hl=en&as_sdt=2,45&as_vis=1.

Virginia passed a law which gave voters a choice between paying the poll tax “or filing a certificate of residence six months before the election.” Congressional Research Service, “Abolition of the Poll Tax” at http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-9-25.pdf. The U.S. Supreme Court ruled this law conflicted with the new amendment because it created a significant barrier to voting as the only alternative to paying the poll tax. Harman v. Forssenius, 380 U.S. 528 (1965) at http://scholar.google.com/scholar_case?case=1269987767365696368&q=harman+v.+forssenius&hl=en&as_sdt=2,45&as_vis=1.

Additional source: Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (Basic Books: 2000)

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

June 1, 2012

Essay #75

Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

Amendment XXIII:

The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

The 23rd Amendment

The Twenty-third Amendment grants residents of the District of Columbia the electoral votes to participate in the election for the country’s President and Vice President. From 1800 until 1960, when Congress passed the Twenty-third Amendment, residents of the District of Columbia were not constitutionally able to participate in presidential elections. Residents voted for President for the first time in 1964 after the states ratified the Twenty-third Amendment. To understand the significance of this Amendment, one must first understand the Founders’ purpose in creating District of Columbia.

The Founders designed the District of Columbia to protect the federal government. Since the federal government exercises certain powers over state governments, having the capital city located in one particular state would give that state tremendous influence over the federal government. Allowing one state to control the federal government would violate the principle of federalism. Here’s how James explained it in Federalist No. 43:

The indispensable necessity of complete authority at the seat of Government carries its own evidence with it. It is a power exercised by every Legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings be interrupted, with impunity; but a dependence of the members of the general Government, on the State comprehending the seat of the Government for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the Government, and dissatisfactory to the other members of the confederacy.

The Twenty-third Amendment gives D.C. a voice in selecting the president and vice president through the Electoral College, but clarifies that D.C. is not a state: D.C. receives the number of electoral votes “equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State.”

The Amendment also empowers Congress to decide the method by which the District selects presidential electors. This is comparable to the power given to state legislatures. Currently, the District of Columbia has a maximum of three elec­toral votes, regardless of population. Congress chose a winner-take-all system (the same system used in every state but Maine and Nebraska) to choose presidential electors, meaning that the candidate who receives the majority of votes in a popular vote receives all of the District’s electors.

The Twenty-third Amendment underscores the Founders’ wisdom in designing the federal city. The Founders wisely crafted a federal district for the seat of government. They made the capital independent from, and therefore not subservient to, the authority of a particular state.

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

May 31, 2012

Essay #74

Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

Amendment XXII:

1: No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

 

2: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

 

Amendment XXII: Reform or Revision?

Until 1940, presidents honored the George Washington precedent of serving for only two terms. In that year Franklin Roosevelt defied tradition and won a third term, then later a fourth term. Roosevelt died in office in 1945. Presidential term limits became a huge issue in the 1946 watershed election, and a new generation swept into office, many of them returning soldiers. The new congress was young, idealistic, and committed to change. One of their first priorities was the XXII Amendment, which was ratified by the states in early 1951. Since then, we have had eleven presidents, but so far only four have been restricted from another term by this amendment.

There have been many proposals to reform or revise the XXII Amendment. Congress has repeatedly submitted bills to repeal the amendment, but none has ever made it out of committee. Some have proposed that the restriction be revised to consecutive terms, and others want a super-majority of both houses to have the ability to override the restriction.

The XXII Amendment ought to be left in place without revision.

The president is often called the most powerful person in the world. To a great extent, that is true. Over the centuries, presiden­tial power has increased enormously, both domestically and inter­nationally. This was not the intent of the delegates to the Constitutional Convention. The president was supposed to be a co-equal partner in a three-branch government focused on the needs of Americans.

The greatest increase in presidential power came from the growth in government. As the national government grew, from around 4 percent of gross domestic product in the 1920s to 25 percent in 2010, presidential power grew exponentially because all but a smidgeon of that money ended up in the executive branch. The bigger the national government grows, the more powerful the executive is as an indi­vidual.

In United States v. Curtiss-Wright Export Corp (1936), the Supreme Court ruled that the president has almost unrestricted powers in international affairs. The Court said that this singular authority over foreign affairs is “the very delicate, plenary and exclu­sive power of the President as sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.” One of the few excep­tions to this exclusive power is Senate approval of treaties.

This ruling by itself did not make the president the most powerful person on the world stage. Three other developments made that happen. The first was that the American free enterprise system built the largest, most robust economy in the world. The second development was the vacuum of power after World War II. The Soviets were dangerous, and their ambitions for empire threatened the world. Someone had to step into the breach. The third development was the devastating power and global reach of modern weaponry.

Both inside and outside the United States, the president is enormously powerful. The Framers of the Constitution feared concentrated power, and they were especially fearful of concentrated power in single person. The Framers would have immediately searched for ways to curtail this power, and term limits would be at the forefront of their consideration. We need an ironclad XXII Amendment to bolster the idea that this power is only on loan for a limited period.

Power corrupts. Let us hope it takes longer than eight years.

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

May 30, 2012

Essay #73

 

 

Amendment XXII:

1: No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

2: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

A Terminal Debate

“No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once…”

Presidential term limits in America are conventional, not controversial. They are an accepted fact of today’s executive cycle – one of the few things in politics that doesn’t provoke divided public comment. Yet, a brief review of executive eligibility reveals that the issue has not gone uncontested.

As I considered the political philosophy behind this amendment, I had to confront the tension between the precedent set by George Washington (he reluctantly accepted a second presidential term, and declined a third) and the Federalist Papers’ appeal for indefinite eligibility:

“Nothing appears more plausible at first sight, nor more ill-founded upon close inspection, than a scheme which in relation to the present point has had some respectable advocates – I mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it, either for a limited period or forever after.” (Federalist #72)

The Federalist Papers are pretty much the gold standard in analyzing human motivation/selfish ambition and how it can be expected to play out in political office; so when Alexander Hamilton says that term limits could not be more ill-founded, I am prone to believe him.

He goes on to enumerate a convincing list of the disadvantages of putting an expiration date on a qualified president – namely, that term-limits discourage the accountability of the man and the stability of the office. Furthermore, he argues that it is counterintuitive to drain the collected wisdom and experience from the office of the president, while that president remains the popular choice.

But for all of Hamilton’s logic, when George Washington – the first practitioner of American political principle – voluntarily retired his post after eight years, I am inclined to respect that, as well. There was nothing to withhold him, but Mt. Vernon and principle. Given Washington’s outstanding record of public service, I am more inclined to believe it was principle.

One of the most central principles of our republic – underscored in the Declaration of Independence – was the rejection of tyranny. Washington demonstrated that a self-effacing executive was just as important as separation of power and an educated public to guarding against it.

FDR was the only president to breach the unspoken, two-term rule by winning four consecutive elections. A few years after, the 22nd amendment was ratified to make it a written rule. The occasional congressman will try to repeal it, but so far their legislation has never made it out of committee. Subsequently, both Presidents Reagan and Clinton could have won third terms, but, per the amendment, none have thrice been president. Still, the philosophy of the Federalists has not undone the precedent of the founder.

Michaela Goertzen is a speechwriter at the office of Alaska Lt. Governor Mead Treadwell

May 29, 2012

Essay #72

Guest Essayist: Frank M. Reilly, Esq., a partner at Potts & Reilly, L.L.P

Amendment XXI, Section 2:

Section 2: The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

 

The 21st Amendment is the only amendment to the Constitution which repeals another amendment.  The amendment which it repealed, the 18th, became effective in 1920 and it prohibited

 

“the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States”

 

and its territories.  The passage of the 18th Amendment, and the subsequent enactment by Congress of its enabling legislation, named the Volstead Act, began a period known as the Prohibition.  The Prohibition era lasted a little over 13 years until the states ratified the 21st Amendment in 1933.

The framers of the 18th Amendment, encouraged by the strong temperance movement and the Anti-Saloon League, hoped that a national prohibition on the use of alcoholic beverages would make the nation a better, and more moral place.  President Calvin Coolidge, who served from 1923 to 1929 as our nation’s 30th president, called Prohibition the “greatest social experiment of modern times.”    Others, such as former President William Howard Taft, who had served as president from 1909 to 1913 and who served as Chief Justice of the U.S. Supreme Court during much of the Prohibition period, predicted that

 

“the business of manufacturing alcohol, liquor and beer will go out of the hands of law-abiding citizens and will be transferred to the quasi-criminal classes.”

 

Taft’s prediction ultimately came true, and many entities that previously made alcoholic beverages, as well as new operations, clandestinely (and sometimes openly) violated the law.  The fulfillment of Taft’s prediction, and the other unintended consequences of the Prohibition, was a cruel irony for those who wanted Prohibition to foster a more chaste nation.

Instead of reducing crime and improving the national morality, crime and immorality significantly increased during Prohibition.  “Speakeasies,” bars quietly operating in violation of the law, sprang up in larger cities, and in contrast with the swinging-door saloons they replaced, they welcomed the women that began to frequent the new bars.  It is said that it became popular within the national culture to violate the law, and a whole class of ordinary citizens became criminals.  Private stills produced barrels and barrels of moonshine, some operations were small and served a family or a small group of people; others were larger operations operated by the underworld.  Bootlegging gangsters, such as Al Capone, had their heyday.  Similar to the illicit drug imports today, international criminals worked hard to bring whiskey, rum and other spirits into the country, more often succeeding than failing at their tasks.

Others found clever ways around the Prohibition.  For example, the Napa Valley vineyards of the Beringer family made and sold legal “raisin cakes” from dried grapes, and packaged them with warning labels that said “Caution: will ferment and turn into wine.”  Sales of sacramental wine, used in church services to celebrate communion and which was exempt from the Prohibition laws, skyrocketed, and many assumed that some priests and rabbis of the time were bootlegging on the side.  People with doctor’s prescriptions were able to purchase 1 pint of spirits per week for “medicinal purposes.”  While these exemptions in the law were used for legitimate purposes, organized crime syndicates frequently took advantage of these exemptions and cooked their books to use the legitimate services as front operations to bootlegging.

The Prohibition ushered in at least two additions to popular culture:  NASCAR races and the cocktail.  In the southern United States, some bootleggers retrofitted cars to run loads of whiskey on a fixed fee, per case basis.  These stock cars were built with a heavy duty chassis so that revenue agents would not see an overloaded car, and a souped up engine so the agents could not catch it.  These modified stock cars led to the genesis of the National Association for Stock Car Auto Racing after races by moonshine runners became popular in the south.  Finally, the cocktail – an alcoholic spirit mixed with a sweet or strongly flavored mixer – was invented to cover up the bad taste of homemade gin or whiskey.

Support for Prohibition began to wither with increased public recognition of:  Prohibition’s failures; costly, corrupt and inefficient enforcement efforts; a recognition by some Prohibitionist business leaders that taxing liquor could reduce the impact of rising income taxes; the prospect of new jobs that could be created with a newly legal liquor industry; and finally, the political and economic distractions of the Great Depression.  In 1932, Congress passed a resolution to send the 21st Amendment to the states for ratification, and within a year two-thirds of the states ratified the amendment.  The law began to fracture even before the amendment became effective.  In the spring of 1933, prior to the ratification, newly elected President Franklin D. Roosevelt asked Congress to repeal portions of the Volstead Act to allow the brewing of real beer (“near beer” had been allowed under Prohibition; it tasted like real beer but had an extremely low alcohol content).  After the 21st Amendment became effective, the remainder of the federal Prohibition laws were repealed, and significant taxes were added to the sale of liquor.

Frank M. Reilly, Esq., is a partner at Potts & Reilly, L.L.P., Attorneys & Counselors in Austin and Horseshoe Bay, Texas

May 28, 2012

Essay #71

 

Guest Essayist: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies

Amendment XXI, Section 1:

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Ending Prohibition:  Are there Lessons to be Learned?

In this essay, my intention is not to focus on the fact that the 21st Amendment repealed Prohibition, but to explore briefly what lessons we can learn from the experience.

To quickly summarize the facts, the 18th Amendment was enacted in 1919, which prohibited the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States.”  However, as detailed in the excellent Ken Burns documentary, Mark Thornton’s seminal book entitled The Economics of Prohibition, and elsewhere, despite its altruistic intentions, Prohibition didn’t decrease alcohol abuse but increased it; Prohibition didn’t eliminate crime but created it; and Prohibition certainly didn’t increase prosperity but robbed the treasury of taxes.  As a result, Prohibition was repealed in 1933 by the 21st Amendment.  (Significantly, because of fear of grassroots political pressure from the temperance movement, the 21st Amendment is, thus far in American history, the only constitutional amendment ratified by state conventions rather than by the state legislatures.)

Given this debacle, I think there are at least a few lessons I think we can learn:

To begin, Prohibition provides an excellent example—albeit a bit dysfunctional one—of the amendment process spelled out by Article 5 at work, in that we as a society were able to self-correct a policy gone horribly wrong.  Indeed, although I’m sure Prohibition was enacted with the best of intentions, the Prohibition experience nonetheless epitomizes the “law of unintended consequences.”

That said, here is an interesting question to ponder:  let us assume that rather than elevate Prohibition to the full fledged level of a Constitutional Amendment, we only went so far as to pass a law that prohibited the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States.”  Would it have been easier for us to self-correct Prohibition via either a new law through the legislative process or a Constitutional challenge in the courts?  Probably.  As a result, Prohibition also teaches us to exercise some degree of caution and careful thought before we seek to undertake another effort to amend the Constitution.

Yet, but perhaps most importantly, Prohibition forces us to recognize the old maxim that if we are to be a society of laws, then the public must believe in the legitimacy of the law.  Indeed, in undertaking research for this essay, I came across a telling quote by wealthy industrialist John D. Rockefeller, Jr. from 1932, whereby he wrote:

“When Prohibition was introduced, I hoped that it would be widely supported by public opinion and the day would soon come when the evil effects of alcohol would be recognized. I have slowly and reluctantly come to believe that this has not been the result. Instead, drinking has generally increased; the speakeasy has replaced the saloon; a vast army of lawbreakers has appeared; many of our best citizens have openly ignored Prohibition; respect for the law has been greatly lessened; and crime has increased to a level never seen before.”

So what is it about Prohibition that caused many Americans literally to lose faith with their own Constitution?  Certainly, we have a lot of laws that constrain personal behavior (e.g., prohibitions against murder; prohibitions against fraud and theft; prohibitions against treason), but everybody generally accepts these constraints as necessary to ensure a functioning society.  What was it about Prohibition that, to use Mr. Rockefeller’s words, “created a vast army of lawbreakers…”?

Although I’m sure different people can provide different answers to this question, I come out with the view that Prohibition failed because Americans simply came to realize that the government had no business sticking its nose into their personal lives and interfering with their proverbial “pursuit of happiness.”  Thus, because many Americans viewed the law as violating their basic civil liberties, they saw no reason to comply with the law.

To illustrate my point, let’s take the following extreme hypothetical example.  As many readers of Constituting America are well aware, American’s cherish their Second Amendment right to bear arms.  Now, let’s assume that a huge “firearms temperance” movement sweeps the nation and, as a result, a new Constitutional amendment is enacted that repeals the Second Amendment and prohibits the “manufacture, sale, or transportation of firearms within, the importation thereof into, or the exportation thereof from the United States.”  In such a hypothetical case, while law abiding citizens could no longer own guns to hunt or to protect their families, do we honestly think that gun-related crimes would disappear or that a vibrant black market for firearms would not instantly blossom?  Of course not.  In such a case, I have no doubt that after a few years of many unintended consequences, there would be a forceful movement to repeal my hypothetical amendment too.

In sum, Prohibition teaches us that while it is possible to correct bad policy decisions, any time we seek to elevate an issue to the level of a Constitutional Amendment we should do so with both great discipline and respect for individual liberty.  If we do not learn the lessons from Prohibition, however, then we are doomed to repeat them in the future.

Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies (www.phoenix‑center.org), a non‑profit research organization based in Washington, DC.  He is a member in good standing in the bars of New York, Massachusetts and the District of Columbia.  The views expressed in this article do not represent the views of the Phoenix Center or its staff.

May 25, 2012

Essay #70

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XX, Section 4:

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

The Twentieth Amendment (ratified in 1933) addresses two issues—lame duck Congresses and presidential succession. In regards to the latter, the amendment provides for a number of different eventualities with the basic theme being an attempt “to smooth out additional succession wrinkles.” Akhil Reed Amar, “Presidents, Vice Presidents, and Death: Closing the Constitution’s Succession Gap” Arkansas Law Review, vol. 48, p. 215 (1995).

Section 4 addresses a longshot eventuality but one that is certainly not inconceivable. For this section to be invoked, two things must happen. First, a presidential election would have to produce no clear winner because none of the candidates had an Electoral College majority. In this circumstance, the Constitution empowers the House of Representatives to determine the winner. Second, one of the major candidates would have to die before the election controversy was resolved. The second has never happened but the first has occurred twice in our nation’s history.

In 1824, four candidates divided the Electoral College votes with Andrew Jackson securing the most at 99. Since none had a majority, the House of Representatives chose from the top three candidates (as required by the Twelfth Amendment) and essentially between Jackson and John Quincy Adams (who received 84 Electoral College votes). The House selected Adams 13-11 (voting was by state delegation). See John Sacher, “The 1824 Election: The Corrupt Bargain?” Franklin’s Opus, February 24, 2012 at http://franklinsopus.org/2012/02/the-1824-election-the-corrupt-bargain/.

In 1876, Samuel Tilden won the popular vote for president with 51% to 48% for Rutherford Hayes. Tilden, however, received only 184 Electoral College votes, one shy of the needed majority. Twenty Electoral College votes from four States were in dispute; precisely the number Hayes would need to become president. Congress created an independent Electoral Commission with fifteen members—five senators, five representatives and five justices of the U.S. Supreme Court. The Commission met in the Supreme Court’s chambers and heard arguments about the various state Electoral College votes. The Commission voted to give Florida’s votes to Hayes 8-7. The legislation creating the Commission required both houses of Congress to reject Commission rulings if the rulings were to be invalidated. Thus, while the House rejected the Commission rulings on Florida, and later Louisiana, Oregon and South Carolina, since the Senate voted to uphold them, the Commission’s decisions stood and Hayes was awarded all of the disputed Electoral College votes making him president. A last minute filibuster by House Democrats failed and in the early morning of March 2, 1877 Hayes was awarded the presidency with a one-vote Electoral College majority. The inauguration was held three days later. See “Finding Precedent: Hayes v. Tilden: The Electoral College Controversy of 1876-1877” Harper’s Weekly at http://elections.harpweek.com/09Ver2Controversy/Overview-1.htm.

Assuming this scenario was to occur again and one of the candidates tragically dies, section 4 empowers Congress to enact legislation that would determine what should happen.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

May 24, 2012

Essay #69

Guest Essayist: David J. Bobb, Director, Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., and lecturer in politics

http://vimeo.com/42675773

Amendment XX, Section 3:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified, and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

On January 6, 2001, Vice President Al Gore presided over his own political funeral.  On that day, a joint session of Congress certified the final Electoral College vote that put George W. Bush into the White House.  Vice President Gore had the unenviable task of wielding the gavel at the certification of his Republican foe’s victory.

Imagine now not a political funeral at the end of a presidential election, but an actual funeral—for a president-elect—in between the November election and the January certification of electoral votes.  That’s the main scenario the third section of the Twentieth Amendment is designed to address.

Largely unrelated to the first two sections of the Twentieth Amendment, which shortened the time of the lame-duck presidency, the third section of the amendment has prompted, it seems, more unanswered hypothetical scenarios than it has answered.  Although it sought to address gaps left by previous efforts to address presidential secession, this section (and the fourth that follows) still leaves much to constitutional and legislative conjecture.

As legal scholar Akhil Amar pointed out in Senate testimony in 1994, the main problem with the Twentieth Amendment, left unanswered by the Twenty-Fifth or any legislation on the matter, is that “it is not self-evident that a person who dies before the official counting of electoral votes in Congress is formally the President elect.”  The very term “President elect” is left ambiguous, then, with the result, according to Amar, of a possible confusion about the electoral status of the decedent.

What’s worse, Amar further wonders, is what would happen if the presumed presidential election victor dies before the Electoral College meets in December?  “What is a faithful elector to do here?” Amar queries.  The elector gets no guidance from the Constitution, although Congress did refuse to count three electoral votes cast for candidate Horace Greeley, who passed away after he earned the votes but before the College had met.

Push the dismal early death scenario even earlier, and the problems mount.  What if a candidate perishes just before the November election?  Or what would happen if both president-elect and vice-president elect are simultaneously slain, in advance of the congressional certification of the electoral count?

The scenarios are endless, and while the Presidential Succession Act of 1947 tried to plug holes that existed, there are numerous scholars today that are convinced that more legislative fixes are still required.  In one notable recent move, the Continuity of Government Commission—a joint effort of the American Enterprise Institute and the Brookings Institution—offered suggested remedies to problems in presidential succession that since their 2009 proposal have not been adopted by Congress.

Despite the questions that abound about this amendment’s third section, there exists a notable irony that almost came to fruition just after the passage of the Twentieth Amendment.  As the Continuity of Government Commission’s report details, had President-elect Franklin D. Roosevelt not escaped an assassin’s bullet that claimed the life of the mayor of Chicago, the Vice President-elect, John Nance Garner, would have assumed office under the terms of the Twentieth Amendment’s third section.

David J. Bobb is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C., and lecturer in politics.

 

May 23, 2012

Essay #68

Guest Essayist: Marc Lampkin, Shareholder at Brownstein Hyatt Farber Schreck and graduate of the Boston College Law School

Amendment XX, Section 2:

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3rd day of January, unless they shall by law appoint a different day.

The XXth Amendment is fairly straightforward.  Often referred to as the “Lame Duck Amendment” the XXth Amendment’s purpose is to update gaps in the original draft of the Constitution setting the time and dates for the Congress and the President — in particular the amendment changed when terms of elected federal officials begin and end in order to line their terms beginning and ending with the election process.

The amendment’s purpose is to limit the chances that when Congress meets the legislators casting the votes were duly elected, rather than retirees or those who had failed to win re-election.

The primary sponsor of the XXth Amendment was Senator George W. Norris of Nebraska.  Senator Norris believed it to be his greatest legislative achievement.  It was passed on March 2, 1932.

When the Constitution was originally ratified, the outgoing Congress under the Articles of Confederation had set March 4, 1789 as the date for which the new federal government would begin.  On an ongoing basis the Constitution provided that the Congressional session would begin on the first Monday in December.

In addition, the second session would begin a month after the election and continue until March 3.  This had the effect of allowing Members to serve during the second session even if they had retired, were defeated, or simply had not chosen to run for re-election.

Initially the schedule made sense as it accommodated the travel and weather difficulties that faced the new nation.  At the time of the founding, roads were bad and travel long distances was often difficult.  Having four months from Election Day to the start of the session seemed prudent.  However, over time, the improvement in road building and the use of trains and boats made such a delay unnecessary.

In addition, the time delay had other pernicious effects.  When President Roosevelt was first elected he was required to wait four months before he could begin any steps to respond to the Great Depression.   Many across the nation believed that the provisions in the Constitution setting the dates for a 19th century world were particularly unhelpful in the 20th century.

This led to the push for passage of the XXth Amendment.

In addition to limiting “lame-ducks” from setting policy at the national level, the XXth Amendment also means that there was a shorter period between the election and the convening of the new Congress and that the outgoing President would have time to consider the outgoing Congress’ legislation.

Marc Lampkin is a Shareholder at Brownstein Hyatt Farber Schreck and is a graduate of the Boston College Law School

May 22, 2012

Essay #67

Guest Essayist: Frank M. Reilly, Esq., a partner at Potts & Reilly, L.L.P.

http://vimeo.com/42528708

Amendment XX, Section 1:

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Terms of the President and Congress

Prior to the 20th Amendment, the Constitution did not specify the beginning and ending dates of the terms of the President, Vice President, and Congress.  The Constitution defined the length of the terms of the various offices, and Congress ultimately enacted laws to set March 4 as the term starting date of all elected federal officeholders.   Our nation’s earliest federal elections were held prior to December of each even numbered year, and in 1845, Congress set the first Tuesday following the first Monday of November of each even numbered year as a uniform federal election date.  As a result, officeholders remained in office after the November elections for about four months until the 4th of March of the following year.  During the 18th century, such officeholders began to be called ̎lame ducks ̎.

From the late 18th century and into the 20th century, the lack of efficient and speedy transportation made the election process necessarily slow.  Today’s ability to almost instantaneously report election returns did not exist in the days without electricity, telephones, electronic voting devices and the Internet.  It could take days or weeks of horseback travel by electors from remote areas of the country to assemble to cast that state’s electoral votes for President and Vice President.  It could take as long for members of Congress and the elected executives to then travel to Washington to take office.  Thus, the four month ̎lame duck ̎ period between election day and the start of new terms of newly elected (or re-elected) officeholders was a practical necessity.

Sometimes either Congress or the President took actions during those ̎lame duck ̎ periods that the public, or incoming officeholders, felt were unfair and that should have waited until the newly elected representatives could take office.  For example, the famous case of Marbury vs. Madison, in which the U.S. Supreme Court claimed its authority to interpret the Constitution, was a dispute over a staff appointment made by President John Adams after President Thomas Jefferson was elected, but before Jefferson took office.

Transportation and technology advances ultimately reduced the need for a long transition period after an election.  Further, public concern about legislation enacted during ̎lame duck ̎ sessions of Congress, motivated Nebraska Senator George W. Norris to propose the 20th Amendment.  After over a decade of debate, and immediately preceding Franklin D. Roosevelt’s first election as the 32nd president, Congress passed the resolution proposing the amendment on March 2, 1932.  The states ratified the amendment by January 23, 1933, the shortest period of time between a congressional proposal of an amendment and its ratification by three-fourths of the states.

The amendment, rather than a change in the law by Congress, was necessary because it shortened the terms of incumbent officeholders, the length of whose terms the Constitution had been specifically set.  The amendment shortened the ̎lame duck ̎ period by half to about 2 months, with Congress taking office on January 3 and the President taking office on January 20 after each of their elections.  The first president affected by this change was Franklin D. Roosevelt following his second election in 1936.

Legislative history shows that the purpose of the 20th Amendment was to not only shorten the 4 month ̎lame duck ̎ period, but also to prevent  ̎lame duck ̎ sessions of Congress.  However, the 20th Amendment contains no specific language to prohibit ̎lame duck ̎ sessions, and Congress has met in many such sessions since after the states adopted the amendment.  Political debate about lame duck ̎ sessions, however, has been raised on several recent occasions.

On November 13, 1980, a ̎lame duck ̎ President Jimmy Carter nominated future Supreme Court Justice Stephen G. Breyer as a justice of the United States Court of Appeals for the 1st Circuit, and the ̎lame duck ̎ Senate confirmed the appointment in December, 1980.  In December 1998, the House of Representatives voted to impeach President William J. Clinton during a ̎lame duck ̎ session.  Some argued that these actions violated the spirit, if not the letter, of the 20th Amendment, but no one challenged the actions in court.

In 2000, some discussed the potential interplay between the 20th Amendment, and the 12th Amendment, which requires that the House of Representatives select the president if no candidate receives a majority of the electoral votes cast for president.  During the time in which the presidential election results between George W. Bush and Albert Gore, Jr. were still undetermined, some scholars questioned whether a ̎lame duck ̎ House of Representatives could select the president if neither Bush nor Gore received a majority of the electoral votes, or whether the issue would have to wait until the newly elected House of Representatives convened.

While the 20th Amendment’s original intent has been publicly debated, there are no reported court cases involving the amendment.

Frank M. Reilly, Esq., is a partner at Potts & Reilly, L.L.P., Attorneys & Counselors in Austin and Horseshoe Bay, Texas

May 21, 2012

Essay #66

Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

Amendment XIX:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.

 

The Nineteenth Amendment

The Nineteenth Amendment prohibits the federal government or state governments from denying individuals the right to vote on the basis of sex. It also grants Congress the power to impose this rule through legislation.

The Constitution introduced in 1787 was a gender-neutral document: It actually did not prohibit women from voting. The Framers gave individual states the power to determine who could participate in elections. All states granted men suffrage. In 1797, though, New Jersey made history by recognizing the right of women to vote. Never before in all of recorded history had women exercised the right to vote.

Because the Constitution did not prohibit women from voting, no constitutional amendment was technically necessary for women to exercise suffrage. This is evident in the variety of strategies that the women’s suffrage movement used to secure the right to vote.

The first strategy involved the interpretation of the Fourteenth Amendment. Section 2 of that amendment prohibited denying “male inhabitants” the right to vote, suggesting that the Constitution granted only men the right to vote. Proponents of women’s suffrage argued that the Citizenship Clause and the Privileges or Immunities Clause of the Fourteenth Amendment prevented states from denying women the right to vote in federal elections. In Minor v. Happersett (1874), however, the Supreme Court dismissed this argument.

The second strategy focused on convincing individual states to remove voting qualifications related to sex. These efforts were eventually quite successful. Wyoming entered the Union in 1890 with women’s suffrage, becoming the first state since New Jersey to allow women to participate in elections on an equal basis with men. By the time the Nineteenth Amendment was ratified, 30 states already granted voting rights to women for members of the House, members of the Senate, or the President.

The third and final strategy involved amending the Constitution to prevent states from imposing sex-based voting qualifications. The first of such amendments was proposed in 1869. In 1897, a California Senator proposed what would become the Nineteenth Amendment. The Amendment was ratified in 1920 with essentially the same wording as the Fifteenth Amendment.

There has been little litigation over the Nineteenth Amendment. The Supreme Court addressed the amendment directly in Breedlove v. Suttles (1937), a case in which Georgia law exempted women from a tax but required men to pay it upon registering to vote. The Court ruled that the amendment protected the right of both men and women to vote but did not limit a state’s authority to tax voters.

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

May 18, 2012

Essay #65

 

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XVIII:

Section 1: After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation

Section 2: The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Amendment XVIII, Section 2

The Prohibition amendment only lasted in force for fourteen years from 1920 to 1933 (though it was ratified in 1919 by its terms it did not become effective until one year later) remains the only amendment to have been repealed in its entirety. The substance of the amendment has already been addressed so is there any more to learn from this footnote in constitutional history?

There is one important lesson we can learn from the amendment’s enforcement section about federalism and the respective roles of the national and state governments

Section two of the 18th Amendment provides: “The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.” This language is unique among the constitutional amendments. Beginning with the Civil War Amendments, drafters often began to include some kind of enforcement language in amendments, typically specifying that Congress could pass legislation to ensure the amendment’s intent was carried out. The 18th Amendment provided for “concurrent” jurisdiction between the national government and the States.

The concept of jurisdiction is central to our constitutional system. Because we have a federal system, with authority and responsibility divided between two different entities—the national government and the States—and because ours is a government of enumerated powers in which the Constitution gives to the national government authority to do only what that document specifies it may do, a grant of authority to carry out a new role must be specified in an amendment to the Constitution unless the amendment’s effect is self-executing.

The significance of the enforcement provision of the 18th Amendment is first that is specifies the branch of the national government responsible for enforcement is Congress and that it is to carry out this responsibility through legislation. Even this Progressive Era enactment respected the separate roles of branches of the national government. Consistent with every other aspect of the Constitution, this amendment was to be made effective not by judicial opinion or administrative branch lawmaking. So, the 18th Amendment reminds us that under the United States Constitution lawmaking is the prerogative of the legislative branch.

Second, the amendment specified that Congress will be exercising power concurrently with the States. Since the States had already been making alcohol policy previous to the 18th Amendment, it is clear that the amendment’s proponents recognized their inherent power to do so and only amended the Constitution so as to provide a new power of Congress; a power that (a) it did not have before and (b) it could not have unless specifically provided (enumerated) by an addition to the Constitution.

Thus, though the amendment is no longer enforceable it still provides a helpful reminder of the way in which our system is intended to function. While the powers of the national government and to be “few and defined” (Federalist 45), the states are free to do whatever they are not specifically prohibited from doing by the Constitution or the reserved powers of the people themselves.

Even the most cursory glance at current political controversies would remind us of exactly how important this reminder is.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

May 17, 2012

Essay #64

Guest Essayist: Gordon Lloyd, Ph.D., Professor of Public Policy at Pepperdine University

Amendment XVIII:

Section 1: After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2: The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section One of the 18th Amendment contains only forty-four words.  These few words are intended, however, to introduce a remarkable and clear change in the relationship between the federal government and the individual American citizen.  In popular terminology, this section prohibited, and criminalized, what was formerly a matter of taste or culture, namely, the purchase and consumption of alcoholic beverages.  But, as we shall see, there is a bit more nuance and ambiguity in this section than what is captured by the common understanding.  Language matters and the thoughts behind the words also matter.  In addition, sometimes, what isn’t said is as important as what is said.

We can collect the words that are indeed said into five separate but related categories. 1) After one year from the ratification of this article 2) the manufacture, sale, or transportation of intoxicating liquors 3) within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof 4) for beverage purposes 5) is hereby prohibited.

This is the first time that an amendment to the Constitution would not take effect immediately upon receiving the requisite votes of 3/4 of the state legislatures, but at a later designated time.   The amendment was ratified on January 16, 1919 and went into effect on January 17, 1920.  Why designate a one-year delay?  The thought was that one-year would give American business, government, and citizens sufficient time to adjust their life style to a new, and so the proponents thought, improved American way of life.

Americans, for most of their history, however, accepted that the Constitution limited the reach of the federal government to few and defined objects leaving the rest of public policy to state and local governments or to the private sector.  The Constitution “enshrined” the rights of the individual and the states over against the federal government in the Bill of Rights, also known as the first ten amendments.

True, the 14th -15th Amendments, passed in light of the civil war, limited, for the first time, what state governments could and could not do.  Specifically, no state could deny the civil rights and voting rights of recently freed African Americans.  And the 13th Amendment also constitutionally limited what Americans could own:  it declared that no American could own another person.

A second feature to Section One of the 18th Amendment, therefore, is that it introduces over 100 years after the Founding amendments, and fifty years from the Civil War amendments, into the very Constitution itself, the proposition that we as individual Americans do not own ourselves with respect to the consumption etc., of certain beverages.  Not having a drink is made the moral equivalent of not owning a slave?

The prohibition of alcohol was not a phenomenon at either the Founding or the Civil War.  The case for federal, and then constitutional, prohibition grew out of the success of the Temperance Movement. Their appeal to end the evil of drink spread across the various states in the late nineteenth century and into national politics in the early twentieth century.  Overwhelming majorities of both political parties in Congress endorsed National Prohibition in 1917.  Thus, surprisingly, a formerly politically decentralized and alcohol drinking nation overwhelmingly accepted the Temperance argument that drinking was a moral issue, rather than a matter of personal taste, and that it ought to be constitutionally prohibited.

The fascinating interrelationship between the 16th, 17th, 18th, and 19th Amendments—the so-called Progressive Amendments—is beyond the scope of this essay.  But we do need to ask:  What is Progressive about Prohibition? Both movements see the “cleaning up” of the American political system, with its “smoked filled rooms,” on the one hand, and reforming public conduct and getting rid of saloons on the other hand, as twin forces in the transformation of America into a better nation.

But, once again, language is important.  The clear and purposeful prohibition language covering the importation, exportation, and domestic “manufacture, sale, or transportation” shows the moral side of America.  But what is not said in this “mission statement” shows the endurance of entrepreneurial politics in American life.  This is the third feature that is important in Section One.

Despite the common interpretation, Section One does NOT prohibit “the purchase and consumption of alcoholic beverages.” The words, “purchase,” “consumption,” and “alcohol,” are not mentioned.  What is found there instead is the phrase “intoxicating liquors.”  This leaves open to future Congressional debate, and political exemptions, what is “intoxicating” and what are “liquors?”   What about “sacramental wine,” and “medicinal alcohol?”  Shall they be exempt?  After all, the prohibition is “for beverage purposes.”  Nor is anything said about eating purposes.  This ambiguous language is not accidental; it reflects the persistence of entrepreneurial politics in America.

Professor of Public Policy at Pepperdine University, Dr. Lloyd is the coauthor of three books on the American founding and sole author of a book on the political economy of the New Deal. His latest coauthored book is The Two Narratives of Political Economy. He currently serves on the National Advisory Council for the Walter and Leonore Annenberg Presidential Learning Center through the Ronald Reagan Presidential Foundation.

May 16, 2012

Essay #63

Guest Essayist: Ralph A. Rossum, Ph.D., the Salvatori Professor of American Constitutionalism at Claremont McKenna College

Amendment XVII:

1: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

2: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

3: This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Seventeenth Amendment

The Seventeenth Amendment replaced the Constitution’s original indirect election of the U.S. Senate by state legislatures with direct election by the people; it was approved by the Congress on May 12, 1912, was ratified by the requisite three-fourths of the state legislatures in less than 11 months, and was declared to be a part of the Constitution on May 31, 1913.  Not only was it ratified quickly, it was ratified by overwhelming numbers: In 52 of the 72 state legislative chambers that voted to ratify the Seventeenth Amendment, the vote was unanimous, and in all 36 of the ratifying states, the total number of votes cast in opposition to ratification was only 191, with 152 of these votes coming from the lower chambers of Vermont and Connecticut.

While state ratification of the Seventeenth Amendment came quickly and easily, approval by the Congress did not. The first resolution calling for direct election of the Senate was introduced in the House of Representatives on February 14, 1826. From that date until the adoption of the Seventeenth Amendment 86 years later, 187 subsequent resolutions of a similar nature were also introduced before Congress, 167 of them after 1880. The House approved six of these proposals before the Senate reluctantly gave its consent.

By altering how the Senate was elected, however, they also altered the principal mechanism employed by the framers to protect federalism.  The framers understood that the mode of electing (and especially re-electing) senators by state legislatures made it in the self-interest of senators to preserve the original federal design and to protect the interests of states as states. This understanding was perfectly captured by Alexander Hamilton during the New York Ratifying Convention on June 24, 1788, when he explicitly connected the mode of electing the Senate with the protection of the interests of the states as states. “When you take a view of all the circumstances which have been recited, you will certainly see that the senators will constantly look up to the state governments with an eye of dependence and affection. If they are ambitious to continue in office, they will make every prudent arrangement for this purpose, and, whatever may be their private sentiments or politics, they will be convinced that the surest means of obtaining reelection will be a uniform attachment to the interests of their several states.”

Hamilton’s arguments to the contrary, notwithstanding, the states quickly and overwhelming ratified an amendment that removed the principal structural means for protecting the original federal design and the interests of the states as states. Four factors explain why they did so.

The first was legislative deadlock over the election of senators brought about when one political party controlled the state assembly or house and another controlled the state senate. Prior to the ratification of the Seventeenth Amendment, there 71 such legislative deadlocks, resulting in 17 senate seats going unfilled for an entire legislative session or more. These protracted deadlocks often led to the election of “the darkest of the dark horse” candidates, occasionally deprived the affected states of representation in the Senate, always consumed a great deal of state legislative time that was therefore not spent on other important state matters, and powerfully served to rally the proponents of direct election.

A second factor was the political scandal that resulted when deadlocks were occasionally loosened by the lubricant of bribe money.  While corruption was proved to be present in only seven cases of the 1,180 senators elected from 1789 to 1909, these instances were much publicized and proved crucial in undermining support for the original mode of electing senators.

A third factor, closely related to the second, was the growing strength of the Populist movement and its deep-seated suspicion of wealth and influence. It presented the Senate as “an unrepresentative, unresponsive ‘millionaires club,’ high on partisanship but low in integrity.”

And, when Populism waned, Progressivism waxed in its place, providing a fourth (and ultimately decisive) factor: The Progressives believed that the cure for all the ills of democracy was more democracy. Their goal was, as Woodrow Wilson proclaimed in his 1912 campaign book The New Freedom, for government to be not only “of, by, and for” the people, but “through the people.”

Ralph A. Rossum, Ph.D. is the Salvatori Professor of American Constitutionalism at Claremont McKenna College. He is the author of a number of books  including Federalism, the Supreme Court, and the Seventeenth Amendment, Antonin Scalia’s Jurisprudence: Text and Tradition, and American Constitutional Law (8th edition).

May 15, 2012 

Essay #62 

Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

Amendment XVII:

1: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

2: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

3: This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

 

Many Americans wonder why it is that the federal government continues to expand its power at the expense of the states and local governments.  As the Supreme Court observed in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985),“the adoption of the Seventeenth Amendment in 1913 … alter[ed] the influence of the States in the federal political process.” Ironically, it was state legislatures that insisted on adopting the Seventeenth Amendment even though it virtually guaranteed their loss of power. The Seventeenth Amendment inflicted a near death-blow to federalism.

The first sentence of the Seventeenth amendment substitutes “elected by the people thereof” for the words “chosen by the Legislature thereof” in the language of the first paragraph of Article 1, Sect. 3. The amendment also provides the procedure for filling vacancies by election, but permitting states by legislation to allow the state’s governor to make temporary appointments.

Prior to the 17th Amendment, the Constitution provided for US senators to be elected by the legislature of each state in order to reflect that the Senate represented the states, as contrasted with the House which represented the people of each state.  Originally, U.S. senators did represent their own states because they owed their elections to their state legislature, rather than directly to the voters of the state. The Senate, thus, carried forward the (con)federal element from the Articles of Confederation, under which only the states were represented in the national legislative body.  As noted in The Federalist, the fact that state legislatures elected U.S. senators made the states part of the federal government.  As intended, this arrangement provided protection for states against attempts by the federal government to increase and consolidate its own power. In other words, the original method of electing senators was the primary institutional protection of federalism.

In the decade prior to the Civil War, over the issue of slavery, and increasingly after the Civil War, some state legislatures failed to elect senators. That development, plus charges that senators were being elected and corrupted by corporate interests prompted some states to adopt a system of de facto election of senators, the results of which were then ratified by the state legislatures.  Proposals for a constitutional amendment providing for direct popular election of senators were long blocked in the Senate because most senators were elected by state legislatures.  Over time, the number of senators elected de facto by popular election increased.  Also, states were adopting petitions for a constitutional convention to consider an amendment to provide for popular election of senators.  As the number of states came closer to the number requiring the calling of a Constitutional Convention, the Senate allowed what became the Seventeenth Amendment to be submitted to the states for ratification.

A major factor promoting direct popular election of senators was the Progressive Movement.  This movement generally criticized the Constitution’s system of separation of powers because it made it difficult to enact federal legislation. The Framers had done so in order to protect liberty and to create stability in government.  The Progressives, on the other hand, wanted government to be more democratic and, therefore, to allow easier passage of national legislation reflecting the immediate popular will.

By shifting the selection of senators to the general electorate, the 17th amendment not only accomplished those purposes; but it also meant that senators no longer needed to be as concerned about the issues favored by state legislators. Predictably, over time, senators voted for popular measures which involved “unfunded mandates” imposing the costs on the states.  Senators were able to claim political credit for the legislation, while the states were left to pay for new national policies not adopted by the states.  Such unfunded mandates would have been unthinkable prior to adoption of the 17th amendment.

Ironically, more than the required number of state legislatures ratified the Seventeenth Amendment, with little or no realization that they were diminishing the power of their own states and undermining federalism generally.  Many legislators apparently thought they had more important matters to attend to than devoting time to the struggles that often revolved around electing a senator. Such an attitude might have been understandable at a time when the federal government had much less power vis-a-vis the states.  What those legislators did not appreciate was that the balance of power favorable to the states was due to the fact that state legislatures controlled the U.S. Senate.  Over time, since adoption of the Seventeenth Amendment, the balance of power has inevitably consistently shifted in favor of the federal government.

Dr. John S. Baker, Jr. is a Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.

 

Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

Amendment XVI:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Reform or Revision?

The infamous XVI Amendment gave the national government the authority to tax income … from whatever source derived. Income tax has always been divisive. In the early twentieth century, the amendment was promoted with the phrase “soak the rich,” and the level of progressiveness in the tax codes has been contentious ever since. Many feel that it is only fair that those with more money should pay the lion’s share, while others think fairness means that every American should contribute at least something to the national coffers.

In Federalist 10, James Madison wrote, “The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice.” For the hundred years that the XVI Amendment has been in place, exact impartiality has been a rarity.

There are many odious aspects of our current income tax. T. Coleman Andrews, commissioner of the IRS under Eisenhower said, “It opened up our homes, our papers and our effects to the prying eyes of government agents.” An IRS appeal is through tax courts without juries, and if a taxpayer loses, the individual must pay before suing the government. Congress relishes playing three-card Monte with the tax code by deftly moving taxes up, down and sideways, while slipping loopholes to favored constituents. Tax policy seldom has any relationship to economic growth, keeping markets free, or preserving personal liberty. For those of us who are recordkeeping impaired, the laws are a nightmare and a huge waste of valuable time. And last, we work and struggle to make ends meet, and instead of getting thanks for all the money we send to Washington, there’s always some politician trying to make us feel guilty because we didn’t send more.

Should the XVI Amendment be reformed or revised? Probably. Revision of the XVI Amendment could potentially fix many issues about the application of income tax, but it would not resolve our growing debt issues. The federal government spends about a quarter of our national production, much of it financed with debt that has climbed to unfathomable levels. Reforming or revising the XVI Amendment might squeeze the revenue side, but it won’t guarantee spending restraint. The government has no restrictions on borrowing or printing money.

Congress has shown that it won’t fix the tax code or spending. As we’ve witnessed since the Tax Reform Act of 1986, tax cuts and simplification only buy a short recess from offensive rates and burdensome regulations.

Without an ironclad restraint, government will continue to tax and spend recklessly. If permanent change is desired, it will require amending the Constitution. The real question is what kind of constitutional reform is needed. It’s possible we could have a public debate and resolve the fairness issue once and for all. For example, a flat tax would be good for the individual and boost economic growth, but most Americans have come to believe progressive rates equate to fairness. Another proposed reform would repeal the XVI Amendment in favor of a national sales tax—sometimes called the fair tax. Critics have pointed out that these reforms have their own problems, but even if they present an improvement, they seem unlikely to get out of Congress or be ratified by thirty-eight state legislatures.

If the goal is to make income tax fairer or trade it for a different tax, then a revision of the XVI Amendment could do the trick. However, if the goal is to collapse the deficit—and eventually the debt—then reform needs to address both the income and spending sides. This means that revision of the XVI Amendment should probably be done in conjunction with a Balanced Budget Amendment. A consolidated reform approach would provide the best chance of ratification and fixing our country’s finances. Alas, that would take leadership. Where is Alexander Hamilton when you need him?

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

May 11, 2012

Essay #60

 

Guest Essayist: Marc Lampkin, Shareholder at Brownstein Hyatt Farber Schreck and graduate of the Boston College Law School

Amendment XVI:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Power to Tax Incomes

The 16th Amendment is an excellent example of why it is important to act judiciously and cautiously when it comes to amending the Constitution.  Most Americans recall that when our nation was founded, the framers did not agree to allow the federal government to tax the income of its citizenry.  In fact they specifically included a proviso that provided that neither income taxes nor any other type of direct taxes could be collected by the federal government.  Instead of collecting taxes in that manner, up until passage of the 16th Amendment the federal government was funded primarily by indirect taxes – duties and sales taxes.

One of the reasons that the founders wanted to limit the type of taxing authority of the federal government was that it was a way to ensure that the individual citizen was protected from an overbearing federal authority.  The consensus was that if Congress had the power to assess taxes directly on individuals they could single out certain individuals or all individuals for excessive taxation and there would be no upper limit on the amount assessed.

Sales taxes or import duties were indirect taxes that while affecting the livelihoods of individuals could be more readily avoided if individuals felt they were unfair or unwise.  Nevertheless, a direct tax combined with Congress’ power to control the military meant that taxation power could reach any individual for any reason and it was for that reason viewed as a threat on liberty.

Although this understanding waned after the first 50 years or so of the Constitution’s ratification, the Supreme Court acted vigilantly to ensure that federal lawmakers accepted the restraint on Congress’ taxing power.  However, there was at least one period when the Court relented – the Civil War.  The Supreme Court upheld the Revenue Act of 1861.  This law assessed a 3% flat tax on almost all income.

Nevertheless, subsequently the Court returned to form and refused to allow Congress to continue income taxes or other direct taxes.

Around the turn of the century far more conversation among policy makers focused on ways to increase revenues for the treasury.

Fairly quickly a rift was revealed.  More Democrats than Republicans supported the idea of an income tax.  Moreover, when the measures were introduced GOP Senators would delay or filibuster action on the measure.  This practice over about a decade led to some of the first campaign themes that one party – the Republicans – was “the party of the rich.”

By the time President Taft came to office, due to the failure of the GOP to explain to the public why it thought a federal income tax as a concept was a bad idea, most Americans generally held favorable views about the income tax and were suspicious that the Republicans were solely motivated by a desire to protect wealthy individuals from taxation.

Additionally due to the shellacking the GOP took in the federal elections of 1892, it was felt by party leaders that the GOP’s position advocating steady increases in tariff rates on household goods was a non-starter.  It was in this environment that President Taft began publicly advocating alternatives to tariff funding for the federal government including advocating an income tax.

Some of his critics in the Democratic Party thought they saw an opening to once again push the income tax but the same pattern of the last decade continued.  A bill would be introduced and then quietly killed in the Senate.  Only difference was that now the bills being introduced were by Republicans and but since nothing changed in terms of enactment the Republicans were given a pass in the political arena.

In April 1909, Texas Senator Joseph W. Bailey, a conservative Democrat who also opposed income taxes, came up with a plan that would ultimately upset the apple cart.  He decided to embarrass the Republicans by trying to get them to publicly admit that they actually opposed income tax bills.

The progressives within the GOP including Teddy Roosevelt, Hiram Johnson, and Robert La Follette waxed enthusiastically on behalf of the bill.  This placed President Taft in an awkward position.  He wanted to be seen as being for an income tax, yet he wasn’t ready to actually enact one.

Perhaps his plan was too clever.  In any event, the strategy that he came up with to once again kill the measure would ultimately fail.  Recognizing that the same plan of having GOP members block it wouldn’t work with so many “progressive Republicans” supporting the measure, the new strategy was predicated on making the income tax measure a Constitutional amendment.  Taft and his team counted on conservative state legislatures refusing to go along with the idea and letting it stall out in the hinterlands.

As part of the plan, President Taft formally requested the amendment and the House and Senate duly acted.  The House vote was 318-14 and the Senate voted unanimously. However, the states didn’t balk as anticipated.  In February of 1913 it was ratified just 4 years after Congress has submitted it to the states.

Today income taxes are the principle source of income for the federal government.

Marc Lampkin is a Shareholder at Brownstein Hyatt Farber Schreck and is a graduate of the Boston College Law School

May 10, 2012

Essay #59

 

 

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment XV:

Section 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2: The Congress shall have power to enforce this article by appropriate legislation.

As do its older companions among the three Reconstruction Amendments, the Fifteenth Amendment authorizes Congress to make laws to enforce its provisions. Congress acted almost immediately after the amendment’s adoption to protect the voting rights of black citizens through the Enforcement Act of 1870. Just six years later, however, the Supreme Court blunted that statute’s use as a practical tool to prevent Southern interference with the voting rights of blacks.

For the next eighty years, the focus of 15th Amendment law shifted to the Supreme Court as it struck down various ingenious ways, such as “grandfather clauses” and literacy tests, that states developed to continue the disenfranchisement of blacks. Not until 1957 did Congress involve itself again. Finally, in 1965, Congress used Section 2 to pass the Voting Rights Act of 1965. That statute is the most significant law passed under this section, and its constitutionality was quickly upheld in two major Supreme Court rulings in 1966.

The statute prohibits the use of any procedure or test that has the purpose or effect of abridging a citizen’s right to vote on account of race. Moreover, it requires that certain states and other political units that seek to change voting procedures must obtain pre-clearance from the Justice Department. These mechanisms, direct prohibition and pre-clearance from federal authorities, are key features of this potentially far-reaching statute. The latter requirement especially is controversial. Justice Hugo Black noted, a “federal law which assumes the power to compel the States to submit in advance any proposed legislation they have for approval by federal agents” threatens the system of structural federalism because it “approaches dangerously near to wiping the States out as useful and effective units in the government of our country.”

Section 2 is a remedial provision, similar to Section 2 of the 13th Amendment and Section 5 of the 14th Amendment. As to the last of these, the Supreme Court has held that any Congressional act must solely remedy violations by the states of the 14th Amendment and must not simply create new statutory rights to sue. Congress must show that the action by the states that the law prohibits is a violation of the 14th Amendment, as determined by Supreme Court precedent. Once such a violation is established, the law must seek to remedy that violation. The characteristics of a remedy are that it targets only the wrongdoers and the offending behavior, and is in place only as long as is needed to cure the problem. Under the 14th Amendment, that test would be met if the law targeted governmental bodies or government officials for sanction, was limited to states that engaged in the unconstitutional conduct, and applied only as long as the violation continued. The Court has coined a fancy and sonorous phrase for this requirement, calling it one of “congruence and proportionality.”

While the Court has not formally adopted the same test for Section 2 of the 15th Amendment, language from the lower courts and from the Supreme Court in the 2009 decision in Northwest Austin Municipal Utility District v. Holder suggests that this is the likely test that will be applied to laws under this section. The provisions of the Voting Rights Act originally met this test. The most controversial section of the Act, the pre-clearance provision, only applies to states or other political units, and only to those that engaged in violations of the 15th Amendment and abridged the right to vote of various racial or ethnic groups (usually blacks or citizens of Mexican ancestry). The statute was in effect only for five years and allowed a “bail-out” if a political subdivision could show that the reason it was covered by the statute (determined through a voting participation formula) was not due to any unlawful discriminatory practice.

Since then, however, the Act’s constitutionality has become more problematic. It has been re-adopted four times, the latest extension, in 2007, for 25 years. Entire states, such as Texas, continue to be subject to its restrictions. Bail-outs were rare, if they occurred at all, before 1982. Between 1982 and 2009, only 17 political units (e.g. towns or cities) out of 12,000 that are covered by the law successfully bailed out. The Justice Department consistently opposed and blocked bail-out suits.

Conditions in the states have changed since 1965. Indeed, the evils of unbalanced voting rates between whites and others are greater today in some states that are not subject to the Act’s coverage formula. All changes in election law are covered by the statute and must be shown not to have a racially discriminatory effect on voting and must receive Justice Department approval. As one frustrated Georgia Congressman tartly remarked, “If you move a polling place from the Baptist church to the Methodist church, you’ve got to go through the Justice Department.”

This was precisely the problem faced by a small water district in Texas that wanted to move the voting place for election of its board from a private house to a public school. The district was formed in 1987 and never engaged in voting discrimination in violation of the 15th Amendment. But, since Texas was covered by the Act, the district was covered, and the Justice Department opposed the district’s suit to bail out of coverage.

The Supreme Court heard the Northwest Austin case in 2009. While the justices did not reach the constitutionality of the Act, the oral argument and the opinion served strong notice that the Court was skeptical that current social and political conditions warranted a “remedy” based on a formula reflecting nearly 50-year-old evidence. At argument, Chief Justice Roberts and Justice Alito wondered why the Act had not been extended to other states where there were greater voting disparities between whites and racial and ethnic minorities than in the covered states. Such unequal treatment goes against the basic constitutional presumption of equality among the states and can only be avoided in unusual cases. The opinion noted the “federalism cost” of interference with the fundamental political decisions of states, the same concern that Justice Black had raised 40 years earlier.

Since Northwest Austin, several additional political subdivisions have been able to extricate themselves from the Act’s preclearance requirement, including the first outside the state of Virginia. Local politicians, the Justice Department, and the lower courts may have received the Court’s signal and are facilitating bail-outs as a way to avoid having the Court declare the Act unconstitutional.

The Act is an object lesson of how a problem begets a law that remains long after the events that gave rise to it are past. The Act was to be “temporary,” but such measures rarely are. It is in truth a remedy without an ill and becomes thereby part of a political spoils system.

Constituencies develop whose economic livelihood or political influence depends on the continued existence of the law and the perpetuation of the appearance of need for it. Those constituencies include the bureaucrats and lawyers in the Justice Department, but also the politicians—federal, state, and local—who can use their support for the Act as evidence of political virtue to further their own power. The political system may be unable to reform itself under such circumstances, and it remains for the courts to declare that the emperor lacks clothes.

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

May 9, 2012

Essay #58

 

Guest Essayist: Colin Hanna, President, Let Freedom Ring

Amendment XV:

1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

2: The Congress shall have power to enforce this article by appropriate legislation.

The Fifteenth Amendment to the United States Constitution was passed by Congress on February 26th 1869, and ratified by the States on February 3rd, 1870.  Although many history books say that it “conferred” or “granted” voting rights to former slaves and anyone else who had been denied voting rights “on account of race, color, or previous condition of servitude,” a close reading of the text of the amendment reveals that its actual force was more idealistic.  It basically affirmed that no citizen could rightfully be deprivedof the right to vote on the basis of that citizen’s race, color or previous condition of servitude – in other words, that such citizens naturally had the right to vote.  That is how “rights” should work, after all; if something is a right, it does not need to be conferred or granted  and cannot be infringed or denied.

It is worth noting that the Fifteenth Amendment only clarified the voting rights of all male citizens.  States have the power to define who is entitled to vote, and at the time of the signing of the Constitution, that generally meant white male property owners.  The States gradually eliminated the property ownership requirement, and by 1850, almost all white males were able to vote regardless of whether or not they owned property.  A literacy test for voting was first imposed by Connecticut in 1855, and the practice gradually spread to several other States throughout the rest of the 19th Century, but in 1915, the Supreme Curt ruled that literacy tests were in conflict with the Fifteenth Amendment.

Section 2 of the Fifteenth Amendment sets forth the means of enforcing the article: by “appropriate legislation.”  It was not until nearly one hundred years later, with the passage of the Voting Rights Act of 1965, that the enforcement of the Fifteenth Amendment was sufficiently clarified that no State could erect a barrier such as a literacy test or poll tax that would deny any citizen the right to vote, as a substitute for overtly denying voting rights on the basis of race or ethnicity.  The Civil Rights Act of 1957 had taken a step in that direction, but practices inconsistent with the Fifteenth Amendment remained widespread.  The Nineteenth Amendment. ratified in 1920, had granted women the right to vote.  The only remaining legal barrier to citizens is age, and that barrier was lowered to 18 by the Twenty-Sixth Amendment, ratified in 1971.  Many people do not realize that a State could permit its citizens to vote at a lower age than 18, and none has.

The moral inconsistency between a Declaration of Independence that proclaimed that all men (and, by widely accepted implication, all women) were created equal, and a Constitution that tolerated inequality based on race and gender, required more than 150 years to be resolved.  The ratification of the Fifteenth Amendment in 1870 was one of the major milestones along that long path.

Colin Hanna is the President of Let Freedom Ring, a public policy organization promoting Constitutional government, economic freedom, and traditional values. Let Freedom Ring can be found on the web at www.LetFreedomRingUSA.com.

May 8, 2012

Essay #57

Guest Essayist: Robert P. George, McCormick Professor of Jurisprudence, Director of the James Madison Program in American Ideals and Institutions, Princeton University

Amendment XIV:

1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Some Key Aims of the 14th Amendment

With the defeat and collapse of the Confederacy, President Lincoln and other Republican leaders began designing and putting into place policies to heal the bitter divisions of civil war and to make good on the promises of freedom and justice on which the nation—“conceived in liberty and dedicated to the proposition that all men are created equal”—was founded.  These policies centrally included amendments to the Constitution to abolish slavery and deal with the all-too-predictable reality of intimidation and discrimination against the newly freed slaves and their descendants.  The assassination of the President did not shut down these efforts.  In 1866, slavery and involuntary servitude were abolished by adding a thirteenth amendment.  Then, in 1868, a fourteenth and fifteenth were added.  This brief essay will focus on some (though not all) of the principal aims of the fourteenth.

The first sentence of the Amendment overturns a key provision of the notorious 1857 case of Dred Scott v. Sandford—a Supreme Court decision that not only purported to invalidate congressional authority to restrict slavery in U.S. territories, but also held that blacks (even free blacks) could not be citizens of the United States.   The sentence says:  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  So a former slave who was born, let us suppose, in Virginia and resides there, or in any other state, is a citizen of the United States and of the Commonwealth of Virginia (or whatever state he happens to reside in).

The second sentence of the Amendment does the work of protecting the former slaves and their descendants from various forms of legally sanctioned discrimination and mistreatment.  It says:  “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In exercising power (especially that of a legislative nature), a worry was that state officials would attempt to deny the former slaves and their progeny the privileges and immunities they possessed by virtue of their American citizenship.  Their right to travel between states, for example, might be unfairly restricted.  The privileges and immunities provision would stand as a bulwark against such abuses.

In exercising power of a judicial nature, the framers and ratifiers of the 14th Amendment worried that state officials, such as judges, would mistreat the former slaves.  And so the due process provision was included to make clear that no person could be executed (deprived of life), jailed or imprisoned (deprived of liberty), or subjected to a forfeiture of goods or a monetary fine (deprived of property) without a fair and impartial hearing before a duly constituted tribunal in which proper procedures (including such things as a presumption of innocence, a right to examine or cross-examine witnesses, and a right to introduce exculpatory evidence) were observed.

In exercising yet other forms of power (especially executive power), the concern was that state officials would abuse their authority by failing to afford to blacks the protections of law given to whites.  Even perfectly fair laws, if applied differently based on race, will result in substantive unfairness.  Having a law against murder that on its face protects everyone is not worth much to a victim or potential victim if officials charged with the execution of the laws can with impunity apply them discriminatorily.  Therefore, the Republicans included a specific provision prohibiting states from denying to any person within their jurisdiction the equal protection of the laws.

Notice that nowhere in these two sentences (that together constitute Section One of the 14th Amendment) does the word “blacks” (or “negroes,” or the words “persons of African descent”) appear.  Nor is the word “race” or any synonym for the word used.  Rather, the terms of these provisions are general. The privileges and immunities provision refers to “citizens,” without specifying race, color, ethnicity, or anything of the type.  The due process and equal protection guarantees refer to “persons,” again without specifying race, etc.  And so these provisions protect everyone against certain abuses by states—not just blacks, though it was, to be sure, a concern to protect the former slaves and their descendants that provided the motivation for the 14th Amendment.

How would the guarantees of Section One of the 14th Amendment be enforced against states that attempted to strip persons of their privileges and immunities as citizens, or deprive them of life, liberty, or property without due process of law, or deny them the equal protection of the laws?  For the answer, we must skip down to Section Five of the Amendment, which specifically addresses the enforcement question.  The first thing to note, is that neither in this Section nor anywhere else in the Amendment is it contemplated that the courts will be the enforcers of its guarantees.  The second thing to notice is that enforcement power is expressly granted to the Congress, to wit, “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”  And so the 14th Amendment adds a new delegated power to those already possessed by the people’s representatives in the national legislature:  the power to enact laws protecting the privileges and immunities of citizens and the rights of all persons within the jurisdiction of states to due process of law and the equal protection of the laws.

Does this mean that the 14th Amendment radically alters the constitutional system under which the national government is a government of delegated and enumerated (and, therefore, limited) powers and the states are governments of general jurisdiction possessing plenary authority (“police powers”) to protect public health, safety, and morals, and advance the common good?  No, that system of federalism and “dual sovereignty” remains in place.  But in certain key respects the Amendment adds to the authority of the national government and restricts the power of states.  So it is an error to suppose that the 14th Amendment changes everything; and it is no less an error to suppose that it changes nothing.

Robert P. George is McCormick Professor of Jurisprudence, Director of the James Madison Program in American Ideals and Institutions at Princeton University

Guest Essayist: Justin Dyer, Ph.D., Author and Professor of Political Science, University of Missouri

Amendment XIV:

1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

In his Notes on the Constitutional Convention of 1787, James Madison observed “the real difference of interest” between states “lay, not between large & small but between N. & Southn.” “The Institution of slavery & its consequences,” Madison maintained, “formed the line of discrimination.” At several points, the original Constitution struck a compromise between these competing interests. The most obvious: slaves would be counted as three-fifths of a person for the purposes of representation (Art. 1§2), Congress would not proscribe the African slave trade until 1808 (Art. 1§9), and runaway slaves would be returned to the state from which they fled (Art. 4§2).

Yet even in these provisions, the word “slavery” never appeared. As Supreme Court Justice John McLean noted, one reason the Constitution crafted in Philadelphia did not mention slavery directly is because “James Madison, that good and great man, was solicitous to guard the language of the instrument.” Indeed, Madison recorded in his notes on the convention that “it would be wrong to admit in the Constitution the idea that there could be property in men” because men, by nature, were not consumable merchandise. And so in “the provision respecting the slave trade, in fixing the ratio of representation, and providing for the reclamation of fugitives from labor,” McLean maintained, “slaves were referred to as persons, and in no other respect are they considered in the Constitution.”

McLean’s comments came in a spirited dissenting opinion in Dred Scott v. Sandford (1857), a case in which the Chief Justice of the Supreme Court claimed, among other things, that “the right of property in a slave is distinctly and expressly affirmed in the Constitution” and that African slaves and their descendents (including free blacks) were not and could never become citizens of the United States. The Dred Scott decision, in turn, set off a firestorm of controversy and was among the precipitating causes of the Civil War– a conflict that would claim some six hundred thousand American lives.

Although the war wrought enormous damage to the southern infrastructure and exacted a heavy price in both blood and treasure, one of the enduring legacies of the conflict was the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution during the first few years after Appomattox. Collectively known as the Reconstruction or Civil War Amendments, these provisions ended slavery, granted birth citizenship, protected the privileges and immunities of citizens, prohibited states from denying anyone the equal protection of the laws or the due process of law, and prohibited racial discrimination in state and national voting laws.

Section 1 of the Fourteenth Amendment, in particular, was written with the Dred Scott decision in mind. “All persons born or naturalized in the United States,” the Amendment declares, “. . . are citizens of the United States and the state wherein they reside.” No longer is there room for debate about whether the descendants of slaves are full citizens of the American republic. The Amendment also introduced into the Constitution several restrictions on state governments: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Initially, there was some debate about how radical a transformation the Fourteenth Amendment worked in the American federal system. According to some members of the Thirty-Ninth Congress, the answer (at least theoretically) was “not much.” As Iowa Congressman James Wilson contended, the amendment established “no new right” and declared “no new principle.” Rather, it was in line with the general principles that had always undergirded American government. In this, Wilson echoed the sentiment of the runaway-slave-turned-abolitionist, Frederick Douglass, who argued that the “Federal Government was never, in its essence, anything but an anti-slavery government . . . If in its origin slavery had any relation to the government, it was only as the scaffolding for the magnificent structure, to be removed as soon as the building was completed.”

The Fourteenth Amendment, which held out the promise of meaningful freedom to newly freed slaves, was also interpreted as something emanating from the principles of the founding. “Let it be remembered,” the Fourteenth Amendment’s principal architect John Bingham declared, quoting an address by the Continental Congress in 1783, “that the rights for which America has contended are the rights of human nature.” To borrow a metaphor made popular by Abraham Lincoln, the end of slavery and the protection of equal civil rights was the working out of an aspiration already present in the American founding, an aspiration summarized by the core political teaching in the Declaration of Independence that “all men are created equal and endowed by their Creator with certain inalienable rights.”

And yet the story of Reconstruction begins, rather than ends, with the Civil War Amendments. Although the post-war Constitution guaranteed equal protection to all persons and an equality of civil rights among citizens, the reality on the ground has often been much different. From the history of Jim Crow to the twentieth century civil rights movement to the debates about fundamental rights today, the tension between the principles of the revolution and the realities of American constitutional politics is one of the enduring features of American government.

Justin Dyer teaches political science at the University of Missouri. He is the author of Natural Law and the Antislavery Constitutional Tradition and the editor of American Soul: The Contested Legacy of the Declaration of Independence.

May 7, 2012

Essay #56

Guest Essayist: J. Eric Wise, a partner in the law firm of Gibson, Dunn & Crutcher LLP

Amendment XIV:

1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

After the Civil War came the Reconstruction Amendments.  Thinking about the Civil War leads to thinking about the compromises in the Constitution over slavery, which in turn leads to thinking about the Declaration of Independence.  The Declaration embodied the principles that were compromised, “the proposition that all men are created equal.”  The Reconstruction Amendments in a sense constitutionalize the promise of the Declaration and represent a “new birth of freedom,” eliminating the compromises in the Constitution over slavery.  While the 13th Amendment prohibits de jure slavery and the 15th Amendment secures voting rights, the 14th Amendment is as a guaranty against de facto slavery.

The Constitution of 1789 contained a few key limits on state action.  No state could enter into treaties, coin money, pass bills of attainder or ex post facto laws, impair contracts or confer nobility, impose tariffs, conduct foreign policy or make war.  Citizens of each state were entitled to the privileges and immunities of citizens in the several states, but states had the power to determine who was a citizen.  Every state was guaranteed a Republican form of government.

States could make laws with respect to almost any other subject matter, and enforce them as they saw fit, subject only to the state constitution.  The states had broad latitude to shape their laws, to determine issues with respect to fairness and rights, and therewith shape the habits – the virtues and vices – of their peoples.  This latitude included, by intention, the power to impose and protect slavery (and by extension other social and political perversions, short of monarchical government).  The 14th Amendment fundamentally changed this.

Section 1 of the 14th Amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The citizenship clause extinguished the ante bellum issues created by Dred Scott v. Sanford (1854) on questions of citizenship.  The privileges and immunities clause placed alien and resident persons in a state on equal footing.  The due process clause guaranteed fair procedure in an actions under state law. The equal protection clause provided for federal oversight as to the equal application of laws to persons within each state.  Additionally section 2 of the 14th Amendment eliminated the three-fifths compromise provisions regarding apportionment of representatives.

As a federal guaranty of certain rights, the 14th Amendment subjects states to federal supervision with respect to fairness and basic rights, whether or not state constitutions already provide such guarantees.  That oversight has provides the federal government – in particular the federal judiciary – with great power to shape the institutions and character of people where once the states had almost exclusive authority.

Judicial construction of the 14th Amendment has changed over time and with it the direction of federal influence over state affairs.  Cases such as Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923) upheld “freedom of contract” as a protected right until the doctrine was reversed in West Coast Hotel v. Parrish (1937).  Equal protection case Brown v. Board of Education (1954) profoundly changed – indeed rescued — the American social landscape, dismantling racial segregation. Equal protection case Hernandez v. Texas (1954) created protected classes of racial and ethnic groups.  Through 14th Amendment cases the First, Second, Fourth, portions of the Fifth, Sixth and Eighth Amendments have incorporated against the states under the doctrine of “substantive due process.”

Also through the 14th Amendment, the judiciary has incorporated rights against the states that are implied by “penumbras” and “emanations” of other express Constitutional provisions.  For example, Griswold v. Connecticut (1965) established a right to privacy which limited the right of a state to prohibit the use of contraceptives.  And there is Roe v. Wade (1973), a 14th Amendment case, famously establishing a national rule over the regulation of abortion, where previously each state had set its own rules, including prohibiting abortion in many states.  These last two cases raise an important question.  Was the 14th Amendment intended to displace the state legislatures with the nine justices of the Supreme Court to the extent it has in practice?

J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance

May 6, 2012

Essay #56

Guest Essayist: Timothy Sandefur, Author and a principal attorney at the Pacific Legal Foundation

http://vimeo.com/41556485

Amendment XIV, Section 5:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Section 5 of the Fourteenth Amendment seems unprepossessing, but it has become the focus of some of the most important constitutional disputes in recent decades. That section gives Congress the power to enforce the Fourteenth Amendment “by appropriate legislation.” But what kind of legislation is “appropriate”?

It seems obvious that these words were added to allow Congress to pass civil rights laws; indeed, the Amendment was partly written in response to President Andrew Johnson’s assertion that the Civil Rights Act of 1866 was unconstitutional. By allowing Congress to pass legislation to protect the “privileges or immunities” of all Americans, along with their rights to due process of law and the equal protection of the laws, the Fourteenth Amendment’s authors hoped that the new guarantees would give real substance to the nation’s “new birth of freedom.” The 1866 Civil Rights Act was followed by others in 1871 and 1875. But the latter Act—which prohibited racial discrimination in “public accommodations” like theaters and restaurants—was held unconstitutional in an 1883 decision called the Civil Rights Cases. The Supreme Court ruled that the Amendment only allowed Congress to prohibit state governments from racial bias, but that Congress could not forbid private citizens from discriminating. The only dissenter in that decision was Justice John Marshall Harlan, who years later would also write the only dissent in Plessy v. Ferguson. He argued that the Civil Rights Acts should still be held constitutional under the Thirteenth Amendment, because racial discrimination was a component of the “slavery” that that Amendment prohibited.

After the Civil Rights Cases, Congress began relying on another constitutional provision for power to prohibit discrimination: the Commerce Clause. The Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and other laws bar businesses from discriminating or impose other restrictions on them do so only on the theory that their activities have some effect on interstate commerce. Although in the 1976 case of Runyon v. McCrary, the Court seemed to agree with Justice Harlan that the Thirteenth Amendment allowed Congress to ban private racial discrimination, Congress and the courts have still continued to rely on the Commerce Clause.

The difference between using Section Five of the Fourteenth Amendment and using the Commerce Clause became especially important in the wake of a 1990 Supreme Court decision involving religious freedom—a decision that provoked a showdown between Congress and the Court. That case, Employment Division v. Smith, was interpreted by some religious conservatives as watering down the First Amendment’s protections for religious liberty. Congress responded to those by passing the Religious Freedom Restoration Act, which tried to instruct courts on how to address First Amendment Claims. Congress said it was using the powers given to it by Section Five, because the law was designed to provide greater protection for federal civil rights. But the Supreme Court disagreed in a follow-up case called City of Boerne v. Flores. It ruled that Section Five does not give Congress limitless power to protect rights in whatever way it pleases; in order to qualify as “appropriate legislation,” a law passed under this Section must be “congruent and proportional” to the harms that Congress wants to prevent. Congress cannot simply create new “rights” under this provision, or alter the meaning of existing rights as understood in judicial precedents. It can only remedy specific wrongs to actual, existing rights.

This “congruence and proportionality” rule for deciding what laws are “appropriate” under the Fourteenth Amendment has remained controversial ever since. On one hand, it makes sense, because the Amendment was meant to give Congress power to enforce the constitutional guarantees that states had regularly ignored before the Civil War, not to dictate what those rights mean, let alone to give federal lawmakers limitless power to implement whatever programs they see fit. On the other hand, the Constitution contains no explicit “congruence and proportionality” requirement, and allowing judges to decide what laws are “congruent and proportional” seems to weaken Congress’s ability to check or balance the courts. City of Boerne is a prime example: Congress perceived the Smith case as a threat to constitutional values, and enacted what it hoped would be a remedy—but the Court struck down that law, also, thus creating a constitutional trump card. When Congress responded to that decision with yet another law expanding protection for religious freedom, it did so under a different constitutional provision entirely.

The conflict between the Commerce Clause and Section Five has also been at the center of recent cases involving the principle of “sovereign immunity”—the long-standing legal privilege under which states cannot be sued without their consent. The Supreme Court has held that Congress cannot simply eliminate this privilege, except under Section Five of the Fourteenth Amendment, if doing so meets the “congruent and proportional” test. Thus in Nevada v. Hibbs (2003), the Court ruled that Congress could nullify the state’s legal immunity in order to enforce federal laws that were “narrowly targeted” against sex discrimination by employers. The law in question there was the Family and Medical Leave Act of 1993, which requires employers—including state governments—to give employees time off to care for sick family members. But the same law requires employers to give workers time off for their own medical needs. When a Maryland state employee was denied leave to care for his own medical condition, he sued the state, which tried to have the case thrown out on sovereign immunity grounds. The case went to the Supreme Court, which ruled against the employee last month. The self-care provisions of the Act, wrote Justice Anthony Kennedy, were not the same kind of civil rights protections that were at issue in the Hibbs case. That meant that “abrogating the States’ immunity from suits for damages for failure to give self-care leave is not a congruent and proportional remedy.”

Decisions like these show how the constitutional tensions that led to the Civil War live on. In the wake of an awful war caused in part by the states’ resistance to federal authority, the Fourteenth Amendment’s authors wanted to give Congress power to enforce the civil rights of all Americans. But they also preserved the autonomy of state governments, because they understood that a decentralized federal system can be essential to protecting individual freedom. Today, courts and Congress struggle to find an acceptable balance between different constitutional clauses and between different conceptions of the role of government in safeguarding civil rights.

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006) and The Right to Earn A Living: Economic Freedom And The Law (Cato Institute, 2010).

Friday, May 4, 2012

Essay # 55

Guest Essayist: Timothy Sandefur, Author and a principal attorney at the Pacific Legal Foundation

http://vimeo.com/41471364

Amendment XIV, Section 4:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The fourth section of the Fourteenth Amendment is rather obscure, or was until recently.  It declares that “[t]he validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.”  In a 1935 case, Perry v. United States, the Supreme Court held that the do-not-question provision applies to all federal debts, and bars the federal government from repudiating debts.

Barring the repayment of Confederate debt was not only a blow to southern rebels, but to their supporters worldwide.  The Civil War was vastly expensive, and raised the national debt to over a billion dollars, and its financial consequences reverberated for decades afterwards.  The victorious Union was especially bitter about international support for the Confederacy; in one instance, that anger nearly led to war with Britain, which refused to pay U.S. claims for damages inflicted by an English-built Confederate warship called the CSS Alabama.  That dispute was only resolved in 1871 by a treaty.

In the years since, this section has rarely given rise to much debate—until the summer of 2011, when Congress began debating the Obama Administration’s request to extend the nation’s “debt ceiling.”  Federal law requires Congress to authorize incurring more debt to pay for federal programs, and by last summer, when the national debt stood at more than $14 trillion, Republicans in Congress resisted allowing more red ink.  They demanded concessions from the White House, and refused to agree to the tax increases demanded by the President.  In mid-July, as the negotiations grew strained, some of the President’s supporters argued that Congressional refusal to allow further debt would violate the Fourteenth Amendment.  South Carolina Congressman James Clyburn urged Obama to invoke Section Four and raise the debt ceiling by executive order, and Yale Law Professor Jack Balkin, Treasury Secretary Timothy Geithner, and even former President Bill Clinton (who, like Obama, was once a law professor) agreed.  They argued that failing to raise the debt limit would increase the risk of a national default, which would amount to an unconstitutional “questioning” of the debt.

But Harvard Law School professor Laurence Tribe disagreed.  In an article in the New York Times, Tribe explained that the Amendment does not bar Congress from making financial choices that might increase the risk of default.  And even if it did, other constitutional provisions give Congress—not the President—the responsibility for borrowing money.  Worse still, the government would probably lose more than it would gain from unilateral presidential action, because investors would then fear that the Administration might take other unprecedented actions undermining their investments.  To his credit, President Obama showed little interest in invoking the Fourteenth Amendment, and within a month, Republicans and Democrats had reached a compromise.

Still, the debt ceiling debate revealed an important point about the Constitution.  Some of its provisions seem to hibernate for years, little studied by law students, and rarely the subject of lawsuits, until a crisis draws public attention back to clauses that were written in anticipation of future problems.  The Constitution is a promise, not only about how the government will operate on a daily basis, but about how we will act when the unexpected occurs.  It must, as Justice George Sutherland once said, be obeyed as much when it pinches as when it comforts.

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006) and The Right to Earn A Living: Economic Freedom And The Law (Cato Institute, 2010).

Thursday, May 3, 2012

Essay # 54

Guest Essayist: Timothy Sandefur, Author and a principal attorney at the Pacific Legal Foundation

http://vimeo.com/41401565

Amendment XIV, Section 3:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

America has never faced another crisis, like the Civil War.  Art historian Robert Hughes has called it “America’s Iliad,” and that is an apt term, because the War was not only a bloody struggle for the nation’s future; it was also the emblematic crisis of the American soul.  All of the cross-currents and crises of our Constitution can be found to intersect there, or to be prophesied in its still resounding clashes.  This is true not only of such legal controversies as whether a state has the power to secede, or whether the president can suspend the writ of habeas corpus in an emergency, but also of much more personal issues as the sense of betrayal and recrimination that arose from a struggle of brother with brother, of father with son.  Section 3 of the Fourteenth Amendment reflects this personal element of the War.  It bars any person from serving in state or federal office who, having taken an oath to serve as a state or federal officer, had broken that oath to serve the Confederacy.  The Amendment gives Congress power to remove the disability by a two-thirds vote.

This provision was not just aimed at Confederate soldiers, but also at prominent citizens, as well.  Former President, John Tyler had given up his citizenship when the war began and was elected to the Confederate Congress; former Vice President John Breckenridge became a Confederate general, and Justice John Campbell resigned from the U.S. Supreme Court to become Jefferson Davis’ Assistant Secretary of War. Leaders of the victorious union realized that, as with so many military conflicts, a triumph at arms would prove futile in the long run if the enemy’s political leaders were allowed to retain political power, and they saw the removal of the Confederacy’s elite from political power as a necessary step toward reconstructing the nation on the principles of equality and liberty for which the union had fought.

Yet the goal of reconstruction was not merely to exclude the former confederates, but to reintegrate them into American society, and barring people from participating in society would prove counterproductive.  Presidents Abraham Lincoln and Andrew Johnson preferred simply requiring former Confederates to swear that in the future they would support the Constitution. And a year before the Fourteenth Amendment was ratified, the Supreme Court struck down a particularly harsh oath requirement imposed by the state of Missouri, which barred people from certain private occupations if they had participated in the rebellion.  That prohibition, declared the Court in Cummings v. Missouri, amounted to retroactive punishment in violation of the ex post facto clause.  The authors of the Fourteenth Amendment, therefore, held open the opportunity for former confederate leaders to return to the mainstream of political life in the restored union.

Yet section 3 had stranger consequences for reconstruction than its authors could have imagined.  In May, 1865, Confederate President Jefferson Davis was arrested in Georgia and held on charges of treason.  Some Republican leaders insisted he be prosecuted, but moderates were more interested in moving on, and the Johnson Administration sought some way to postpone the prosecution.  As Judge C. Ellen Connally explained in a 2009 Akron Law Review article, Chief Justice Salmon Chase found an opportunity for such delay in section 3 of the Fourteenth Amendment.  Chase, who along with another federal judge, presided over Davis’ treason trial, argued that the case must be dismissed because, like the Missouri law at issue in Cummings, the Amendment’s prohibition on serving in public office was a criminal punishment.  That meant Davis could not also be tried for treason without violating the constitutional ban on “double jeopardy.”  The other judge disagreed, which sent the issue to the full Supreme Court for resolution—but before the Court could decide, President Johnson issued a general amnesty, bringing a permanent end to Davis’ prosecution.

A civil war is a great tear in the fabric of a nation, which can never be wholly mended.  Section 3 of the Fourteenth Amendment is a testament to the profound political and personal wounds that “America’s Iliad” inflicted on the country.

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006) and The Right to Earn A Living: Economic Freedom And The Law (Cato Institute, 2010).

Wednesday, May 2, 2012 

Essay # 53 

Guest Essayist: Timothy Sandefur, Author and a principal attorney at the Pacific Legal Foundation

http://vimeo.com/41338488

Amendment XIV, Section 2:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

The end of the Civil War brought radical changes to the United States Constitution.  Leaders of the victorious Republican party hoped now to make the principles for which they waged such a punishing war into a permanent part of the Constitution.   The Fourteenth Amendment renounced the “states’ rights” theories that so prevalent before the war, by declaring first that all Americans are citizens of the United States first and foremost, and only secondarily of the states where they reside.   States had formerly, enjoyed authority to determine both state and federal citizenship; now the nation would determine both.   Second, the Amendment prohibited states from depriving Americans of their “privileges or immunities”—i.e., of the rights that belong to all Americans—or of equal protection of the law, or of life, liberty or property without due process of law.  These new guarantees ensured that the theory of “paramount national citizenship,” for decades the backbone of the Republican anti-slavery crusade, would be enshrined forever in the nation’s highest law.

But the Amendment was not concerned only with these crucial abstract principles.  It was also a matter of practical politics.  The second section of the Amendment—pointing toward the future Fifteenth Amendment—punished any state that deprived people of the right to vote.  Southern states, after all, could be expected to take steps to bar their former slaves—now citizens—from exercising their new rights as citizenship.  Rather than banning such interference outright, as the Fifteenth Amendment would do, this provision declares that if a state deprives “any of the male inhabitants” who are 21 or older from voting in a federal or state election, that state will lose seats in the House of Representatives.

This provision that overrode the Constitution’s infamous “three-fifths” clause, whereby Congress was apportioned on the basis of the white populace along with “three-fifths” of the slaves, and it marked the first steps toward a democracy in which all races could participate.  Of course, there was also a steely political reality behind Congress’s choice of language: if southern states were restored to the union, and apportioned Congressmen on the direct basis of population, the Republicans might soon find themselves outvoted in Congress, destroying their unique opportunity for constitutional reform.  Thus the Amendment permitted states to deprive people of the right to vote on account of their having “participat[ed] in rebellion, or other crime.”

The inclusion of the world “male” was also a calculated political move, and it also sparked a clash among the Amendment’s friends.  Never before had the U.S. Constitution conditioned the right to vote on sex, and in fact, at the time the Constitution was originally ratified, some states allowed women to vote.  But no state allowed women to vote in 1868, and had the Amendment been written in language that included female suffrage, the proposal would have faced far more opposition within the Northern political coalition.  But adding a provision that explicitly allowed states to disenfranchise women put the nation’s imprimatur on discrimination, and offended many of the same female activists who had helped lead the Abolitionist movement.  Some of them—including Elizabeth Cady Stanton and Susan B. Anthony—now opposed any guarantee of voting rights that was not gender-neutral.  The former slave Frederick Douglass was more pragmatic.  He believed strongly in women’s suffrage, but that was a goal for another day.  “Woman has a thousand ways to attach herself to the governing power of the land and already exerts an honorable influence on the course of legislation.”  But “the Negro is mobbed, beaten, shot, stabbed, hanged, burnt, and is the target of all that is malignant in the North and all that is murderous in the south.”

Although section 2 was largely rendered obsolete by the Fifteenth and Nineteenth Amendments—which barred states from discriminating on the basis of race or sex when it comes to the right to vote—it has still played an important role in shaping the power of states to deprive certain groups of voting rights.  In a 1974 case, the Supreme Court ruled that states may disenfranchise felons, pointing out that the Fourteenth Amendment explicitly allowed this.  And in 1970, Justice John Marshall Harlan, whose grandfather had been the lone dissenter in Plessy v. Ferguson, relied partly on the language of section 2 to conclude that the Fourteenth Amendment did not allow Congress to interfere with a state’s power to determine voter qualifications.

That the Amendment’s language regarding the right to vote was so quickly superseded by the Fifteenth Amendment should come as no surprise.  The Fourteenth Amendment was just one step in a long-overdue effort to make the Declaration of Independence’s promise of equal liberty a reality for all.

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006) and The Right to Earn A Living: Economic Freedom And The Law (Cato Institute, 2010).

Tuesday, May 1, 2012

Essay # 52

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/41276250

Amendment XIV, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

Supreme Court Justice Oliver Wendell Holmes once dismissively declared the equal protection clause to be the “usual last resort of constitutional arguments.” At the time, 1927 in the notorious case of Buck v. Bell, Holmes could not have foreseen the explosion in the use of the equal protection clause that would occur a generation later.

The Declaration of Independence had famously asserted the proposition, self-evident to the Founders, that “all Men are created equal.” But this was a metaphysical proposition in that there was to be no aristocracy by birthright, a moral one in that we are all (with allowance for the truly insane) equally imbued with free will, and a religious one in that we are all children of God. The Founders were hardly so naïve to believe that all people are physically, intellectually, and emotionally equal, never mind that they are alike. Aristotle had written in the Politics, “Democracy arises out of the notion that those who are equal in any respect are equal in all respects; because men are equally free, they claim to be absolutely equal.” Aristotle viewed this as a fatal flaw of democracy, a theme echoed in Madison’s Federalist 10. In a trenchant dissection of the instability of democracies, Madison sarcastically observed, “Theoretic politicians, who have patronized this species of government, have erroneously supposed that, by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.”

Moreover, the very real presence of slavery in the great majority of the states demonstrated the limitations of the concrete application of the Declaration’s sentiments. While Thomas Jefferson, agonizing over the institution of slavery from which he personally benefitted, might write, “I tremble for my country when I reflect that God is just,” it was also the case, as the historian Forrest McDonald observed, “Few of his countrymen trembled with him.”

In practice, then, both simple human differences as well as more profound human inequalities have to be taken into account in a successful social order. Regarding the former, the law routinely discriminates by drawing lines that target some in the community for unfavorable treatment. The tax code, for example, is a mass of discriminations. As to the latter, attempts to equalize conditions that arise from the human inequalities about which Madison wrote is a prescription for totalitarian government. That is the dark side of egalitarianism and exposes the tension between equality and liberty.

Moving from a manifesto for independence to a plan for governing the Union, the Framers did not imbed either a general principle of non-discrimination or one of equality of condition in the Constitution. There are only specific limited instantiations of non-discrimination, such as the protection offered under the privileges and immunities clause of Article IV to persons coming into a state from another and under the commerce clause to out-of-staters competing with local businesses.

There is, however, no equal protection clause. That had to await the adoption of the 14th Amendment. However, as was the case with the 13th and 15th Amendments, that provision had to do solely with race discrimination and, more directly, the conditions that resulted from institutionalized slavery based on the black man’s race. The 14th Amendment was the immediate product of concern over the constitutionality of the Civil Rights Act of 1866, a law passed under the 13th Amendment. That statute was an anti-discrimination law. Since it prohibited race discrimination in various matters and did not limit itself to slavery as such or apply only in former slave states, there were doubts about the ability of the 13th Amendment to support this law. To cure that defect, a movement for another constitutional amendment, the eventual 14th, arose in Congress under the auspices of the Joint Committee on Reconstruction and the leadership of Congressman John Bingham of Ohio and Senator Jacob Howard of Michigan.

The equal protection clause was only intended to insure formal equality before the law and only regarding race discrimination. That its reach did not extend further was made clear by the Supreme Court in 1872 in the Slaughterhouse Cases, in which a claim by butchers that a Louisiana law violated, among others, their right to equal protection under the 14th Amendment was rejected almost summarily. As Justice Samuel Miller declared, “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.” In a companion case decided on the same day, Bradwell v. Illinois, a claim by a woman that the state’s refusal to allow women to practice law violated the 14th Amendment did not even produce an argument by her attorneys or a discussion by the Court of a violation of the equal protection clause. The singularly race-focused nature of the equal protection clause was reiterated by the Court of that era in the Civil Rights Cases and Plessy v. Ferguson.

Leaving aside a few odd cases involving unenumerated fundamental rights, it was not until the 1950s that the Supreme Court began to consider non-race-related equal protection claims, and it was not until Reed v. Reed in 1971 that a claim of unconstitutional sex discrimination was successful. In the last several decades, the Court has used the equal protection clause to strike down state laws that discriminate against various classes of aliens, illegitimate children, and homosexuals. Race, ethnicity, religion, national origin and (many) alienage classifications are considered constitutionally “suspect,” meaning that they are presumptively unconstitutional and subject to “strict judicial scrutiny.” Sex and illegitimacy are “quasi-suspect” classifications subject to “intermediate” scrutiny. In either case, the government must show greater need for such discrimination than would be required for ordinary discriminations by government, such as age, wealth, disability, or other classifications. This means effectively that racial and other such differences must not be formally recognized in laws.

The expansion of non-discrimination protection has made obsolete Justice Holmes’ comment about the futility of equal protection clause claims. The Constitution now protects more broadly against discrimination by government than was the case in the 1920s, and certainly than in the 1790s. Still, there is generally no obligation by government to eliminate inequalities that result from human nature and capabilities or from what might be called expansively the human condition. President Obama, speaking years ago at an academic gathering, bemoaned the Supreme Court’s failure to use the equal protection clause to equalize economic and social conditions of inequality, but the Court has generally avoided such judicial legislation. The only exceptions have been in matters related to access to courts, such as the right of an indigent defendant to a paid attorney.

Beyond those few cases, the justices have declined numerous invitations to turn the Constitution from one of rights against the community (a “negative” constitution) to one of rights from the community (a “positive” constitution). Human experience shows that the latter always becomes one of obligations to the community, as government grows and individual liberty shrinks. Certain justices would be happy to move in the direction of the European model to enact their ideal egalitarian world. Justice Ruth Ginsburg’s admonition to the Egyptians that they follow the South African constitution rather than the American in establishing their new system comes to mind. But the increasingly precarious economic status of the welfare state shows the wisdom of the Court in not amending the Constitution to remake the equal protection clause into a constitutional forge of egalitarianism.

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

Monday, April 30, 2012

Essay #51

Guest Essayist: Professor Will Morrisey, William and Patricia LoMothe Chair in the United States Constitution at Hillsdale College

http://vimeo.com/41124226

Amendment XIV, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What Is “Due Process of Law”?

Enacted in 1868, the Fourteenth Amendment numbers among the “Civil War amendments”—those that aimed to settle the relations of the states to the federal government. First among the much-controverted issues prior to the war was slavery, abolished throughout the nation in the Thirteenth Amendment. But slavery had thrived underneath the constitutional carapace of “states’ rights.” If state governments were not restrained from abridging the citizen rights of the former slaves, for example, what would prevent them from reintroducing de facto racial servitude in some other guise?

For example, why could the states not practice oppression against any group it chose to target by making it subject to arbitrary arrest or imprisonment or to summary judgment without benefit of trial? The Constitution prohibited the federal government from doing such things, but what about the other levels of government?

Thus the Fourteenth Amendment says that no state may “deprive any person of life, liberty, or property, without due process of law.” Readers of our founding documents will find that language very familiar. Rightly so: the phrase reproduces the language of the Fifth Amendment, which itself follows the famous words of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Jefferson’s words follow those of the English philosopher John Locke, who identified life, liberty, and property as fundamental natural rights.

This means that the Framers took natural rights—rights endowed by our Creator—and made them into civil rights—rights formally recognized in our fundamental man-made law. Designed and implemented by human beings, governments exist in order to secure our natural rights, and one way to secure those rights is forthrightly to enunciate them in the supreme law of our land, ratified by the only sovereign body under God Americans recognize—themselves.

But if governments are instituted to secure our natural rights against those who would violate them, by what right does government punish the violators? Does effective punishment not require the government to deprive criminals of their property—by fining them—their liberty—by imprisoning them—and even their lives—by executing them for the most heinous offenses against our natural and civil rights? How can government do this without contradicting itself—without violating the very rights government is supposed to secure?

The basic principle of justice is to repay good acts with good acts, bad acts with bad acts. (The basic law of charity is to repay bad acts with good acts, but charity goes beyond justice). The `bad’ or rights-depriving acts of just punishment are actually good in the sense that they punish those guilty of committing bad acts against the good. This repays the bad in their own coin and may deter those who are thinking of committing bad acts. Justice metes out equal things to equals: good things to the good, bad things to the bad.

But how do we determine who is guilty of a bad act? Parents mete out what might be described as informal punitive justice to their misbehaving children. This usually involves the quick procedure of look, see, and swat. Children do not deserve a jury of their peers, primarily because such a juvenile jury would be as foolish and unruly as they. Adult fellow-citizens are a different matter. As persons capable of ruling ourselves by reason, we deserve more careful treatment. The care we owe to children entails bringing them up to rule themselves by reason, preferably before they get big enough to do serious damage. The care we owe our fellow citizens entails treating them as such—as persons who should know better than to behave as if auditioning for the next episode of Cops.

This is where due process of law comes in. As an American citizen, your civil rights may not be abridged as punishment for any crime without the observance by the executive and judicial authorities of well-established legal procedures, including a list of the charges against you and the opportunity to defend yourself against them in court. That is, any punishment involves the government in depriving the accused of some important civil right, a right it normally would be entrusted to secure. To do so fairly, the government must `make a case’ against you—persuade a reasonable judge or jury of your peers that you deserve such deprivation.

Today, this form of due process is often called “procedural due process”—a rather odd-sounding redundancy. What process is not procedural? This locution is meant to distinguish adherence to proper legal procedure from another thing called “substantive due process.”

Strictly defined, due process of law limits executive and judicial power to acts that insure a defendant’s fair chance actually to defend himself civilly, without needing to defend himself physically by running away or fighting back. Due process helps to make civil society civil. Substantive due process limits not only executive or judicial power but legislative power. Substantive due process holds that Congress and (with the Fourteenth Amendment) the state legislatures may no longer pass laws that abridge your life, liberty, or property. For example, an American version of the infamous Nuremberg Laws of Nazi Germany, depriving a particular religious or ethnic group of their civil liberties and thus rendering them less than fully-protected citizens, would clearly violate the civil rights to liberty and property of all members of that group. The “substantive” in the phrase “substantive due process” thus refers to the substance of a given law itself as distinguished from the procedures employed to enforce the law. Due process initially held that you could not be deprived of your civil rights to life, liberty, and property without proper legal procedures; it now meant that legislatures could not deprive you of such rights in the first place. This assurance may seem unnecessary because those rights are already protected by the Constitution as a whole. Be that as it may, the assertion of substantive due process causes a serious dilemma because it returns the country to the original problem that due process was intended to solve: if legislatures cannot secure the rights of the good by enacting laws that injure or `correct’ the bad, how will the rights of the good be secured at all? It seems that the very substantiality of substantive due process contradicts justice itself.

Having caused the problem, the Court soon got round to re-solving it, this time at the expense of the legislatures and of the people, and to the aggrandizement of themselves. In its first move, habitual since the 1940s especially, the Supreme Court has claimed that due process places the states under the requirement to adhere not only to those amendments (such as amendments thirteen and fourteen) that specifically restrict the states, but also to adhere to the whole Bill of Rights, which of course originally applied to the acts of the federal government only. So, for example, the first amendment ban on religious establishment by the federal government left state religious establishments undisturbed; now, the courts could invalidate any such establishments by invoking the due process clause understood “substantively” and not just “procedurally.”

This vast expansion of the scope of the due process clause solved the problem of the protection of our civil rights, but only at the expense of intensifying the problem of American self-government. In practice the Court’s behavior has proved highly selective. In the case of the Second Amendment protection of the right to bear arms, the Court has often chosen to overlook state restrictions on that right. At the same time, the Court has at times deployed substantive due process in establishing hitherto unknown and entirely unsuspected “constitutional rights”. It has done so by making a second move, namely, to widen the definition of the rights to life, liberty, and property. The Court-asserted rights to abortion (established in Roe v. Wade [1973]) and to homosexual activity (established in Lawrence v. Texas [2003]) clearly go far beyond anything the framers of the Fourteenth Amendment could have been thinking of back in 1868. The justices have combined substantive due process with their invention of unenumerated Constitutional rights—seen perhaps most glaringly in the 1965 Griswold v. Connecticut decision (in which the majority opinion claimed that the “right to privacy” existed in the “penumbra” of the right to liberty—an expansive and ill-defined emanation, indeed). The doctrine of substantive due process added to a very broad definition of civil rights has enabled the Court effectively not merely to adjudicate but to legislate—a power previously thought to reside in, well, the legislature.

By placing the states under the entire Bill of Rights, and then by defining “rights” penumbrically (I invent the word for the occasion, imitating the creativity of the distinguished justices in my own small way), the Court has done far more than to abridge the powers of the state governments. It has effectively given itself the power to amend the Constitution. Under the original theory of American constitutionalism, only the people—the sovereigns—held this sovereign power. But now the judges exercise it too, making a portion of the federal government sovereign over the (formerly) sovereign people. While the founders asserted the natural rights and sovereign power of the people to establish civil rights over the government-made rights of Englishmen as the basis of their independence from the Empire, the Supreme Court has effectively revolutionized the American Revolution, making Americans into Europeans, again—the New World back into the Old.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

April 27, 2012 

Essay #50 

Guest Essayist: Kevin R. C. Gutzman, M.P.Aff., J.D., Ph.D., Associate professor of the Department of History and Non-Western Cultures at Western Connecticut State University

http://vimeo.com/41058151

Amendment XIV, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 1, Clause 2 of the 14th Amendment says, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This Privileges or Immunities Clause applies a prohibition previously limiting the Federal Government’s powers to the state governments.

From the Federal Government’s earliest days, the Supreme Court, the Congress, and the president assumed that when the Constitution used technical legal terms having fixed historic meanings, those terms were to be read as having those meanings. If we apply this rule of construction to the Privileges or Immunities Clause, the precedent to which we must look is Justice Bushrod Washington’s decision in the case of Corfield v. Coryell (1823). In that case, Washington—sitting as circuit justice for Pennsylvania—described the “privileges and immunities of citizens in the several States,” mentioned in Article IV, Section 2.

According to Washington:
The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign…. They may … be all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State…; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State…[,] to which may be added, the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State, in every other State, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) “the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.”

The first case in which the Supreme Court had an opportunity to construe the Privileges or Immunities Clause was The Slaughter-House Cases (1873). There, the Court divided the privileges and immunities of American citizens between those that are protected by state governments and those that are, as Section 1 of the Fourteenth Amendment puts it, “privileges or immunities of citizens of the United States.” While it declined to list all of the ones that fell under the Fourteenth Amendment, it did say that virtually all of our rights remained rights of state citizenship, not rights “of citizens of the United States”—just as they had been before the Fourteenth Amendment.

So, some of the “privileges or immunities of citizens of the United States” that it listed were “to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions[;] … the right of free access to its seaports, through which operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States[;] … [a citizen’s right] to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government[;] … [t]he right to peaceably assemble and petition for redress of grievances[;] the privilege of the writ of habeas corpus[;] … the right to use the navigable waters of the United States, however they may penetrate the territory of the several States[;] … all rights secured to our citizens by treaties with foreign nations[;] … [the] privilege … to become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State[; … and] the rights secured by the thirteenth and fifteenth articles of amendment, and by the [rest of the] fourteenth….”

Nowadays, liberal critics commonly decry the Court’s decision in Slaughter-House for not creating numerous new rights for federal courts and Congress to enforce against the states under the cover of the Fourteenth Amendment. However, as the Slaughter-House majority pointed out, to have taken a different position would have made the Court the “censor” of all state and local legislation with a supervisory power over all state laws. While the 20th-century Supreme Court carved out precisely such a role for itself, the Reconstruction-era justices remained committed to the Founders’ vision of a decentralized government in which most decisions were made by elected officials. It is unsurprising that they did not behave as modern liberal judges would behave.

Kevin R. C. Gutzman, M.P.Aff., J.D., Ph.D. is an American historian and New York Times bestselling author. He is an associate professor of the Department of History and Non-Western Cultures at Western Connecticut State University.

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment XIV, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The citizenship clause of the 14th Amendment is one of four amendments to the Constitution that were intended to overturn or clarify Supreme Court rulings (the 11th, 16th, and 26th were the others). Prior to 1857, there had been much scholarly discussion and political debate, but no resolution or consensus, whether the basis of American citizenship was dependent or independent of state citizenship. Many supported the view expressed by South Carolina’s John C. Calhoun in his famous Senate speech on the Force Bill in 1833, “[Every] citizen is a citizen of some State or Territory, and as such, under an express provision of the Constitution, is entitled to all privileges and immunities of citizens in the several States; and it is in this and no other sense that we are citizens of the United States.” On the other hand, James Madison, discussing the need for Congress to provide uniformity in naturalization in Federalist 42, appears to assume that American citizenship cannot be left to the vagaries of state definitions.

The Supreme Court thoroughly examined the issue in the Dred Scott case in 1857. Chief Justice Roger Taney’s majority opinion addressed the interplay between state citizenship and American citizenship. He reasoned that “people of the United States” in the preamble and “citizens” in other parts were synonymous. The people of the United States were composed of the people of the States, as it was they who were the parties to the Constitution in light of the adoption process by state conventions. The “people” of those states were the “free” inhabitants. This was a concept of specific meaning, referring to whites only, not people brought to the colonies as slaves or their descendants, even if thereafter they had been freed. Accordingly, only those descended from white inhabitants and those people naturalized under federal law (since the first statute in 1790, only whites) could be American citizens. This fundamental principle overrode later decisions by individual states to recognize additional classes of state citizens. Scott had no basis claiming citizenship as that term was used in the Constitution. Therefore, he had no power to sue in federal court as a “citizen” of Missouri.

Taney’s argument had a weak link in that there were freed blacks, some of whom could vote in 5 of the 13 states at the adoption of the Constitution. Moreover, the privileges and immunities clause of the Articles of Confederation (the pre-cursor to its counterpart in the Constitution of 1787) had discussed the body of the states’ citizens in terms of their “free inhabitants.” An amendment proposed by South Carolina to insert “white” after “free” was overwhelmingly rejected in 1778. If that was correct, slaves could not claim citizenship, but free blacks could. Just in case, Taney cut off that argument by stating that Scott’s residence with his master in Wisconsin territory could not transmute his status from slave to free.

The main dissenting opinion, by Justice Benjamin Curtis, exploited that weakness, insisting that the Constitution established an understanding of American citizenship that plausibly could extend to all free persons born in the United States. Curtis agreed, however, that the states determined the basic parameters of citizenship, and that American citizenship was derived from the scope of citizenship recognized by the state of birth. The laws of Scott’s state of birth, Virginia, treated him as a slave; therefore he was not at that time a citizen of the United States. Nor would a slave who was temporarily taken into a free state thereby be made free. But when his master took him to reside in a free territory, Wisconsin, that action made Scott a free man and a citizen of the United States. When taken back to live in Missouri, he returned as a free man and became a citizen of that state.

Curtis accepted a unitary basis of citizenship for those born in the United States, one that was determined basically by state law. Taney, on the other hand, accepted a duality: United States citizenship was established by the understanding of the Framers of what made someone part of the “people of the United States.” While states could define state citizenship for themselves, they (or the Congress) could not go against this fundamental principle. Hence, even after the Civil War, freed blacks could not be citizens of the United States, short of a constitutional amendment.

Accepting Taney’s constitutional argument, Congress took that path with the 14th Amendment. United States citizenship was de-coupled from state citizenship, and the latter was made subordinate to the former. National citizenship appears based on place of birth (“jus soli”), the English common law principle going back to feudal antecedents when one’s station was connected to the soil where one was born. However, the amendment also adds that the person must be “subject to the jurisdiction” of the United States. This clearly excludes those children born in the United States to foreign diplomats. Does it also exclude those who are born in the United States to parents who happen to be here temporarily or illegally?

The Supreme Court addressed that clause in 1898 in U.S. v. Wong Kim Ark. The majority ruled very broadly that anyone (other than the children of foreign diplomats) born on U.S. soil was a U.S. citizen. The dissent argued that the competing international law doctrine of blood relationship (“jus sanguinis”) applied, which required not only birth in the U.S. but that the child’s father did not owe allegiance to a foreign power. This was an old principle of Roman law and ancient Greek practice still used in many countries today. It would keep the native-born children at least of those who are here merely as visitors from claiming birthright citizenship.

How does this affect the current debate about “anchor babies” in connection with illegal entrants into the United States? Proponents of unrestricted citizenship argue for the broad language of Wong Kim Ark that generally has prevailed in the courts. However, there are several weaknesses. First, the issue of illegal entrants, or even of temporary visitors, was not addressed there. Mr. Wong himself had lived in the U.S. all of his life. Wong’s parents had been duly admitted as immigrants to the U.S. with a permanent domicile and were engaged in a business. They were not mere passers-through. Nor were they here illegally, a concept that was not an issue in American immigration law until the Chinese Exclusion Act of 1882, years after the Wongs arrived. It was unnecessary for the Court to give such a broad reading to the 14th Amendment, and the justices simply may not have been aware of the ramifications of their language.

Second, the law-of-the-soil tradition carried with it “indelible allegiance.” Thus, a British subject could not renounce British citizenship, which led the British navy, after American independence, to search American vessels and “impress” into British service naturalized American citizens of British ancestry. Americans have roundly rejected that principle.

Third, the debates over the 14th Amendment included remarks by Senator Jacob Howard of Michigan, the amendment’s sponsor, that seem to say that the amendment does not apply to children of any foreigners or aliens, even if those children are born in the United States.

Fourth, Congress on several occasions throughout American history has employed jus sanguinis, for example, in legislation to recognize as citizens by birth the children born abroad to American citizens. This suggests that the 14th Amendment’s jus soli principle applies, unless Congress, as part of the sovereign powers of the national government, passes a law that rests on a different principle.

Overturning a century-old precedent is difficult, but distinguishing it due to changed social circumstances unanticipated at the time is more persuasive. Still, eroding the jus soli interpretation of the citizenship clause is a longshot, but the public debate likely will intensify the pressure for some political or constitutional accommodation.

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

April 25, 2012 

Essay #48 

Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

 

Amendment XIII, Section 2

  1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
  2. Congress shall have power to enforce this article by appropriate legislation.

The Thirteenth Amendment to the United States Constitution officially made all forms of slavery and involuntary servitude except as punishment for a crime unlawful.

Introduced by Ohio Rep. James Ashley originally in 1863, it languished for over a year until companion legislation was introduced in the United States Senate. To give the resolution a final strong push, President Abraham Lincoln had pushed for its inclusion in the GOP platform in 1864 and personally persuaded Democrats from pro-union states to support the effort.

Ultimately, it was passed by the Senate on April 8, 1864, by the House on January 31, 1865, and adopted on December 6, 1865.

Historians record that when the House vote was announced the galleries cheered, congressmen embraced and wept, and Capitol cannons boomed a 100-gun salute.  One Representative, Congressmen George Julian of Indiana wrote in his diary, “I have felt, ever since the vote, as if I were in a new country.”

On December 18, Secretary of State William H. Seward declared that it had been officially ratified by the states.  It was the first such change to the Constitution in 61 years, and it happened just two and a half months before President Lincoln would be tragically assassinated.

Since our country’s founding the issue of slavery had bedeviled our nation.  At the Constitutional Convention good men like George Mason of Virginia argued vehemently against slavery, warning his fellow delegates:   “Every master of slaves is born a petty tyrant.  They bring the judgment of heaven on a country.  As nations cannot be rewarded or punished in the next world, they must be in this.  By an inevitable chain of causes and effects, providence punishes national sins by national calamities.”

While the Constitution that was ultimately adopted failed to completely resolve the slavery issue, it was neither completely silent nor neutral.

The oft-criticized 3/5th compromise specially limited the ability of southern slave-holding states to obtain equal representation in the House of Representatives with that of the non-slave-holding northern states.  Ultimately this would result in a pro-freedom tilt in the House of Representatives.  The Constitution also gave Congress the power to prohibit the importation of new slaves after 1808, which Congress promptly did once it was legally allowed to.

Section 2. Congress shall have power to enforce this article by appropriate legislation

With the passage of the 13th Amendment (specifically clause 2) Congress was given full power to stamp out slavery in all its forms. The motivations of the Members of Congress give us a great degree of insight into the meanings and operations of clause 2 of the 13th Amendment.  While most discussions of the 13th amendment include the 14th and 15th, Congress’ treatment is quite different.  At the time of its introduction, its Republican supporters in Congress and abolitionists across the land saw this amendment and Section 2 in particular as a comprehensive tool to root out not just slavery, but all of its vestiges.

It is for this reason that they didn’t stop with just banning or ending slavery; they empowered Congress to root it out.  Their goal was to assure that the ending of slavery wasn’t a hollow victory, that passage lead to a national commitment to adopt whatever substantive changes were needed to eliminate all “badges and incidents of slavery.”

The men surrounding the introduction were very clear in their objectives.  Leaders like Senator James Harlan, Rep. Thaddeus Stevens, Sen. Charles Sumner, and Rep. Wilson were virulently anti-slavery.  They worked assiduously to draft language that would cover “every proposition regarding slavery.”   And they also saw the 13th amendment as the affirmation of the founder’s principles.  Rep. Godlove Orth (R-IN) said that the 13th Amendment to “be a practical application of that self-evident truth” of the Declaration of Independence “that all men are endowed by their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.”

It was in this context that within days of passage of the 13th Amendment, Members of Congress began debating new statutes to achieve the Thirteenth Amendment’s purposes.  The first bill introduced roughly a week after the amendment was ratified was S. 427 by Senator Henry Wilson (R-MA).  This bill prohibited states, municipalities, corporations and all persons from excluding any person on account of race from travel on railroads or navigable waters.  Although this bill ultimately stalled in Congress, within 2 years four laws using the congress’ enforcement power would be enacted:  The Civil Rights Act of 1866, The Slave Kidnapping Act of 1866, the Peonage Act of 1867, and the Judiciary Act of 1867.  The Civil Rights Act of 1866 in particular set the pace for an aggressive intervention on the part of Congress on behalf of the newly freed slaves.   It provided litigants the right to transfer their legal disputes to federal court when the local and state court system failed to allow them an opportunity for relief.  Across the nation the new law aided families and individuals that had never had access to the court or to equal protection of the law.

Unfortunately for the abolitionists, subsequent elections and the deaths of key leaders would result in an ebbing of enthusiasm for use of the 13th amendment’s authority to remediate the wrongs of slavery.  The deaths of Salmon P. Chase, Thaddeus Stevens, and Edwin Stanton were huge losses for the freedom agenda.  And new President Andrew Johnson was particularly hostile to their efforts going so far as to veto many of the remaining anti-slavery measures that could pass Congress.  But the final death knell for robust authority arising under the 13th amendment came from the Supreme Court.

In a series of lawsuits groups together as the Civil Rights cases, the Supreme Court struck down parts of the Civil Rights Act of 1875 (18 Stat. 335) originally proposed by Senator Charles Sumner and Representative Benjamin F. Butler (both Republicans) in 1870, passed by Congress in February, 1875 and signed by President Grant on March 1, 1875.

The Act protected everyone, regardless of race, color, or previous condition of servitude, to the same treatment in “public accommodations” (i.e. inns, public conveyances on land or water, theaters, and other places of public amusement).  Violators could face a penalty anywhere from $500 to $1,000 and/or 30 days to 1 year in prison. In a setback that the drafters of the 13th amendment would not have expected, the Supreme Court ruled that the 13th amendment like the 14th and 15th amendment didn’t authorize Congress to intervene in private non-government areas. The Court’s ruling would stifle Congress’ ability to exercise its Section 2 power for nearly a century.

It is ironic that many of the 1875 Act’s provisions were later enacted in the Civil Rights Act of 1964 and the Fair Housing Act, this time using the federal power to regulate interstate commerce.

Eventually the Court would reverse itself.  In 1968, in a case called Jones v. Alfred H. Mayer Co. the US Supreme Court case once again dealt with the Civil Rights Act of 1866.  In that case they held that Congress could regulate the sale of private property in order to prevent racial discrimination: “42 U.S.C. § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment.”

A long time coming, the view of the framers was finally validated.  Today as during Reconstruction, Congress, the President and the Courts recognize that Section 2 gives Congress the power to “determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation” to prevent its effects.

Horace Cooper is the Director of the Institute for Liberty’s Center for Law and Regulation and is a legal commentator

April 24, 2012

Essay #47

 

Guest Essayist: W.B. Allen, Dean Emeritus, James Madison College; Emeritus Professor of Political Science, Michigan State University

Amendment 13 – Slavery Abolished, Ratified December 6, 1865.

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.

An Ordinance for the Government of the Territory of the United States, North- West of the River Ohio, known as the Northwest Ordinance or “The Ordinance of 1787,” an act of the Congress of the Confederation of the United States, passed July 13, 1787.
Article 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.

The 13th Amendment is often referred to as the first of the “Reconstruction Amendments.” While it is true that the abolition of slavery was certainly the first priority for the Congress that conducted the War for the Union, it is not exactly correct to pair the 13th Amendment with the 14th and 15th Amendments, which were literally debated in the context of the aftermath of the war and specifically adopted to extend the “privileges and immunities” of citizenship to the ex-slaves. The 13th Amendment, by contrast, was debated and adopted by the Congress while the war yet raged, and specifically as blow against the rebellion as well as an affirmation of the principle of equality at the heart of the Declaration of Independence. As such, the 13th Amendment represents the cashing of the promissory note that Lincoln issued at Gettysburg in 1863.

The best way to analyze the 13th Amendment, therefore, is to recognize that it was adopted before the Reconstruction Congress took office. Then one may review the dramatic debates in the House of the Representatives and the Senate over the period from early 1864 until spring of 1865, when the resolution sending the 13th Amendment to the States was adopted. The debates of that era opened with a reports and discussion on “equality before the law,” “emancipation in the District of Columbia,” employment rights for American blacks, streetcar discrimination, and similar issues before eventuating in the direct discussion of national abolition.

What makes this progression of interest is that it reveals the Congress tentatively, cautiously, approaching the tricky question of national emancipation, although having a firm grasp of the fundamental rights at stake. What all conceded the Congress had the authority to legislate for the District of Columbia, some doubted that the Congress could even propose to the nation at large. In the end the idea of the authority of the people as a whole — the ultimate ratification authority — trumped arguments about “dispossession of property” and interfering with the “police power” in the states. The matter was sensitive not so much on account of the attitudes of the states in rebellion; it was sensitive because several Border States still held slaves but had been loyal to the Union. The idea of an uncompensated emancipation seemed a hard blow to many of their advocates and was, besides, a departure from the precedent of British emancipation in the West Indies a generation earlier The argument was summed up by Senator Lazarus Powell, Democrat from Kentucky, April 8, 1864:

“We were told by the Government in every form in which it could speak, at the beginning of this revolution, that whatever might be the result, the institutions of the States would remain as they were. The President in his inaugural address, announced that he had no constitutional power to interfere with the institution of slavery in the States. The Secretary of State announced it in a communication which he sent abroad. Congress, by a resolution, announced virtually the same thing when they declared that the object of the war was to restore the Union as it was and to maintain the Constitution as it is.”

Senator Henry Wilson, Free Soiler and Republican from Massachusetts, however, would have none of it. The question for him was a matter of setting the nation “right” and removing a fundamental flaw in its fabric:

Throughout all the dominions of slavery republican government, constitutional liberty, the blessings of our free institutions were mere fables. An aristocracy enjoyed unlimited power while the people were pressed to earth and denied the inestimable privileges which by right they should have enjoyed in all the fullness designed by the Constitution.

Senator Charles Sumner, Republican from Massachusetts, summed the matter up with the observation that the proposed amendment was nothing less than the fulfillment of a promise first expressed at the founding and periodically renewed (as in the Missouri Compromise) only with great controversy. He pointed out, accordingly, that the proposed amendment was nothing less than “the idea of reproducing the Jeffersonian ordinance.”

A quick comparison of the text of the 13th Amendment with the language of Article 6 from the Northwest Ordinance will reveal the point of Sumner’s observation. What Jefferson authored and the Confederation Congress adopted and the new government under the Constitution of 1787 solemnly re-affirmed was, effectively, the incompatibility of republicanism and slavery. While that early declaration applied only to the Northwest Territory, and subsequently, the territorial division established by the Missouri Compromise (1820), its purpose and language were to declare the fundamentals of republican government, as the Northwest Ordinance on the whole does expansively (leading some to call it the “first national bill of rights”).

Although the 13th Amendment avoids the Ordinance’s language with regard to fugitive slaves, that omission is understandable where the objective is no longer to admit slavery anywhere, rather than to temporize with it where it already existed. It is safe to say, therefore, that the meaning of the 13th Amendment is authoritatively to be recovered from the intentions and meaning of the Northwest Ordinance — not a mere administrative regulation concerning slavery, but rather a dramatic recovery of the fundamental meaning of republican freedom.

W. B. Allen is Dean Emeritus, James Madison College; and Emeritus
Professor of Political Science, Michigan State University

Monday, April 23, 2012 

Essay #46 

Guest Scholar: Hans Eicholz, Historian and Senior Fellow with Liberty Fund, Inc., an educational foundation based in Indianapolis, Indiana

http://vimeo.com/40700181

Amendment XII:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Circumstances allowing the Senate to choose the Vice-President

The twelfth Amendment of the U.S. Constitution was born out of the immediate political experience of the fledgling republic as it strove to apply the provisions of its written fundamental law just over a decade after ratification.

Historically the powers associated with the executive branch have been among the most dreaded of all governmental functions. In the political struggles of seventeenth century England, the friends of both English and American liberty drew lessons about the need to constrain the prerogatives of monarchs and tyrants. That understanding shaped the indictment against the King of England in the Declaration of Independence, and shaped an important part of the debate over the original Constitutional provisions respecting the election of the American President and Vice-President.

What method of appointment would best assure the selection of leaders with the temperament and virtues necessary to remain under the law? This was the essential question discussed in the Philadelphia Convention when the second Article of the Constitution respecting the selection of the presidency was originally crafted.

Initially, no distinction was to be made in casting ballots for the election of the President and the Vice-President, but each elector was to nominate two individuals. It was hoped that such a process would filter out the influences of local prejudice if each elector were required to vote for a second person not of his or her state. Some consideration, it was believed, would then likely be given to criteria beyond merely local interests. Thus Madison observed, “The second best man in this case would probably be the first in fact.” It was hoped that such a mode of selection, combined with an electoral college, would result in a process far removed from political intrigue and discourage political commotions.

In point of fact, however, that process resulted in considerable discord when the electoral vote was equally split, as happened in the election of 1800 between the two Democratic-Republican candidates of Jefferson and Burr. The equal division of electoral college votes caused the election to be thrown into the House of Representatives.

At this point, and against all expectations, Burr attempted to negotiate with the Federalist representatives in Congress, to obtain the highest office. Eventually thwarted in his machinations, Burr’s dishonorable conduct negated Madison’s initial hopes, revealing that a man of lesser character could yet hold the second position, and if the process of election was not remedied, might at some later election, even take first place through political intrigue and backroom negotiations! For this reason, the Congress set in motion the process to amend the Constitution in the selection of both President and Vice-President on the 9th of December 1803.

The primary alteration of the 12th Amendment required the explicit designation of the office for which each candidate was being designated. It preserved, however, certain aspects of the older provisions of Article II.

The process of the electoral college was maintained to ensure the independence of the executive from the legislative branch.

In matters of tied elections, it continued to send the selection of the Presidency to the House of Representatives, but with the selection of the two officers now split, the selection of a Vice-President in cases of an electoral tie, would go directly to the Senate.

In both cases, this process arose from the general principle of the Founders that in addition to the popular element reflected in the selection processes of the electoral college, regional considerations should continue to have their influence. The United States was not to be seen as simply one homogeneous national democracy, but was also a federal union of distinct state governments, a vital part of ensuring against the over concentration of power.

To this end, when breaking a Presidential tie, the House was to assemble its delegates by states and each state was to determine its votes as one: “the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote.”

Likewise, the Senate, being already organized on the federal principle, would break an electoral tie vote for Vice-President. Indeed, under the old system, the Senate was to perform this function in the event that the next most popular electoral candidates after the Presidential selection, were also tied. This portion of the 12th Amendment merely preserved that order of selection.

Hans Eicholz is an historian and Senior Fellow with Liberty Fund, Inc., an educational foundation based in Indianapolis, Indiana.

April 20, 2012 

Essay #45 

Guest Essayist: Tara Ross, Author, Enlightened Democracy: The Case for the Electoral College

Amendment XII:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Amendment XII: A Tie in the Electoral College

Anti-Electoral College activists sometimes worry that the presidential election could end in a tie. Such a scenario, they might grouse, would create a “stalemate” and could even lead to “The Apocalypse.”

But an electoral tie has occurred already. This election did not result in the Apocalypse, but, as yesterday’s post discussed, there were a few days of congressional stalemate before a President was elected. The then-new nation did not devolve into chaos and rioting. Instead, the biggest consequence of the electoral tie was the Twelfth Amendment. These provisions replaced Article II, Section I, Clause 3 of the Constitution and make it harder (but not impossible) for a presidential election to end in a tie.

The Twelfth Amendment works hand-in-hand with the still operative Article II, Section I, Clause 2: This clause makes each state responsible for deciding how to appoint its own electors. In early elections, state legislatures employed a wide variety of methods—sometimes even selecting electors on their own. Today, all states conduct statewide popular elections for this purpose.

In short, when you go to the polls on Election Day, you are not voting for presidential candidates, even if it seems that way. In reality, you are voting for a slate of individuals, called electors. Most states award their electors in a “winner-take-all” fashion, so the winner of the state receives the state’s entire slate of electors. As an example, Barack Obama “won” the State of Rhode Island in 2008. But what that really meant is that four Democratic electors—not Obama himself—were elected by Rhode Islanders on that day.

The Twelfth Amendment dictates the constitutional responsibilities of electors. The primary responsibility of these Rhode Island electors, along with other electors from the remaining states, was to represent their states in a second election—the real presidential election.

This election among states’ electors occurs on a congressionally designated day in December. The Twelfth Amendment requires that each elector cast two ballots: one for a presidential candidate and one for a vice-presidential candidate. This requirement was a change from the Article II provision, which did not allow electors to distinguish between their votes for President and Vice-President. Both Article II and the Twelfth Amendment require that electors cast at least one ballot for someone who is not “an inhabitant of the same state with themselves.”

In practice, this means that a political party will handicap itself if it nominates presidential and vice-presidential candidates from the same state, because it automatically loses some votes from the home state of one candidate. In 2000, this provision caused Dick Cheney to make a point of establishing his residence in Wyoming. Had both Cheney and George W. Bush hailed from Texas, those electors would have been unable to vote for Cheney and Bush simultaneously.

After electors cast their ballots, their votes are recorded on “Certificates of Vote,” one of which goes to the President of the Senate, as required by the Twelfth Amendment. The President of the Senate presides over a joint session of Congress on January 6, and the votes are counted publicly at that time.

To be elected President, a candidate needs a majority of electoral votes. At this time, 270 votes constitute a majority of the Electoral College and will win the presidency for a candidate. If no candidate wins a majority, the Twelfth Amendment provides a back-up method for presidential selection. In this secondary election, the election of the President is sent to the House and the election of the Vice-President is sent to the Senate.

In the House vote, the Twelfth Amendment provides that each state delegation is granted one vote. (This remains unchanged from the original Article II procedure.) California, with its current delegation of fifty-three Congressmen, would cast one vote, as would South Dakota, with its single Congressman. A President is elected when one candidate wins a majority of states. Article II had allowed the House to choose from the top five presidential candidates (or two in the event of certain ties), but the Twelfth Amendment now requires the House to choose from only the top three presidential candidates.

The Twelfth Amendment also added a new procedure for election of the Vice-President: In the event that no candidate receives a majority, the Senate chooses from the top two vice-presidential candidates. Each Senator has one vote; Senators may vote for either of the top two vice- presidential contenders.

This system exists largely as it was originally proposed by the Constitutional Convention. The Twelfth Amendment tweaked the process, but substantively left the original procedure in place. Unfortunately, this system is now under attack.

The National Popular Vote movement seeks to convince a critical mass of states to award its electors to the winner of the national popular vote, instead of the winner of each state’s popular vote. NPV asks states to sign an interstate compact—basically, a contract—promising to take such action if enough other states sign on. If the movement succeeds, the constitutional election processes described in the Twelfth Amendment will remain only in theory. In practice, they will be gone. Instead, Presidents will be selected through a direct election system.

Surely the Founders would be disappointed in such a result. The Electoral College was a compromise between large and small state delegates at the Constitutional Convention. The delegates wanted the voice of the people to be reflected in the presidential election process, but they also recognized the need to protect minority groups—especially the small states—from the tyranny of the majority. Just as the composition of Congress reflected compromises between the large and small states, so did the presidential election procedure. Even the House contingent election, so disparaged by Electoral College opponents, was an important part of this compromise because of the advantage that it gave to small states.

The delegates would view efforts to abandon the Electoral College as unwise. Max Farrand reports on the delegates’ views in The Framing of the Constitution of the United States: “[F]or of all things done in the convention the members seemed to have been prouder of that than of any other, and they seemed to regard it as having solved the problem for any country of how to choose a chief magistrate.”

Yes, the Electoral College is the solution for any country and any decade. The system that has served Americans so well for so long will continue to do so. If we let it.

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College. More information about Tara can be found at www.taraross.com or on Facebook or Twitter.

April 19, 2012 – Essay #44 

http://vimeo.com/40636737

Guest Essayist: Tara Ross, Author, Enlightened Democracy: The Case for the Electoral College

Amendment XII:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Amendment XII: Reforming the Electoral College

America’s first four presidential elections were governed by Article II of the Constitution. The process worked well initially, which is perhaps unsurprising in retrospect. Nearly everyone expected that the revered General George Washington would be the nation’s first President. These expectations came to fruition when he was unanimously elected twice, in 1789 and 1792. The first contested presidential election did not occur until 1796.

This contested election nearly revealed a flaw in the voting process. But the next election, in 1800, brought the flaw more sharply into view, and it laid the groundwork for the introduction and ratification of the Twelfth Amendment. The provisions of this Amendment would replace Article II, Section 1, Clause 3 of the Constitution.

The problem stemmed from the fact that the original constitutional provision did not allow presidential electors to differentiate between their votes for President and Vice-President. Electors were simply expected to cast two ballots for President. When these votes were tallied, the first place winner became President and the second place winner became Vice-President. Such a process made sense in 1787, before the appearance of political parties. It made less sense after, as demonstrated during the election of 1800.

That year, the Democratic-Republican Party nominated Thomas Jefferson for President and Aaron Burr for Vice-President; the Federalist Party nominated John Adams and Charles Pinckney. Today, such nominations might seem rather routine, but in 1800, the practice of nominating separate candidates for President and Vice-President was relatively new.

When the vote was tallied, it was discovered that Jefferson and Burr had tied. Although the electors had intended to elect Jefferson for President and Burr for Vice-President, they were not permitted to distinguish between their votes for the two offices. The result was an electoral tie that threw the election into the Constitution’s secondary election procedure, known as the House contingent election.

At the time, the House was still controlled by the outgoing Federalist Party. Many Federalists did not like Jefferson and hoped to thwart his election by supporting Burr. Meanwhile, the Democratic-Republican congressmen continued to support their intended presidential candidate, Jefferson. A stalemate continued for the better part of a week. Neither Jefferson nor Burr could obtain the nine state votes needed for victory. Six days and thirty-six ballots later, one Congressman finally yielded, paving the way for Jefferson’s victory.

In the wake of such events, it was not long before a constitutional amendment was proposed to separate the voting for President and Vice- President. Such a solution might seem obvious to modern ears, but it was controversial in the early 1800s. The minority party, the Federalists, argued that the election process, as it then stood, made it possible for the minority party to have a representative in the executive branch. Some Democratic-Republicans also hesitated to change the election procedure. The Article II process had helped them in 1796 when John Adams, a Federalist, was elected President. Despite Adams’s victory, Jefferson had been able to defeat the Federalist vice presidential candidate, Thomas Pinckney.

The proposed constitutional amendment failed to pass the Senate by a single vote when it was first proposed in 1801. In 1803, however, the Twelfth Amendment finally gained enough support to pass both the Senate and the House. North Carolina became the first state to ratify the amendment on December 21, 1803. The amendment became effective when New Hampshire ratified it on June 15, 1804. Tennessee ratified it later, on July 27, 1804. Three states rejected the amendment.

The election process was tweaked and adjusted following the election of 1800, yet today it remains largely as the Founders created it. As a first step, the states cast electoral votes in the nationwide presidential election. If no candidate wins a majority of these state votes, then the House of Representatives must decide which of the top candidates will be the next President.

Tomorrow’s post will explain how this process—created by Article II and slightly modified by the Twelfth Amendment—continues to operate in presidential elections today.

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College. More information about Tara can be found at www.taraross.com or on Facebook or Twitter.

April 18, 2012 – Essay #43

http://vimeo.com/40570764

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/40522514

Amendment XI:

The Judicial power of the United States shall not be construed to extend to any suit or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

“The prince is not bound by the laws.” Thus wrote the lawyer-scribes who compiled the early-6th century compendium of Roman law known as the Code of Justinian. This aphorism defined a fundamental attribute of sovereignty. The sovereign has ultimate authority to make law. Therefore, he cannot be subject to a superior power that could adjudicate a claim that he has violated the law, since that would deny his ultimate authority.

In English constitutional theory, this principle became, “The King can do no wrong.” It was a mainstay of the early modern state and the Tudor and Stuart kings. In somewhat more circumscribed manner, it survived the Glorious Revolution of 1688 and became sufficiently tame as a political construct to be acceptable to English republicans and, through a later formulation, to their counterparts in the American states.

Few, if any, took this point literally, any more than Catholics deem the Pope literally infallible. As William Blackstone explained, the principle was simply that, “whatever may be amiss in the conduct of public affairs is not chargeable personally on the king.” In addition, the law “feels itself incapable of furnishing any adequate remedy, without infringing the dignity and destroying the sovereignty of the royal person.” For Blackstone, as for Justinian’s lawyers and for jurists before and since, the principle was driven by practicality, of not subjecting the ultimate political decision makers to suit over every injury, grave or slight, arising from making and executing public policy. Blackstone allows, however, that the king’s officials and ministers could be called to account for the wrongs that they did in erroneously carrying out public affairs to the injury of someone’s person or property.

Under American theory, constitutional sovereignty shifted from the king to the people. The “people” are incorporated into the states and the United States. In ordinary matters of public policy, practical sovereignty lies in the legislatures. Despite the unfortunate tendency of some political groups towards deification of the State, a fiction that “the people can do no wrong” sounds alien to our ears. Still, the Supreme Court has broadly recognized the principle of “sovereign immunity” as having been carried over from English common law to the states when they declared independence in 1776. Moreover, the Court has underscored the universal nature of sovereign immunity by endorsing it for the United States, as well. One justification the Court has given sounds positively Blackstonian, namely, that a power to haul a state into court without its consent would be an affront to the state’s “dignity.”

The justices have also expressed particular opposition to money claims against a state. Their position may reflect the constitutional reticence of an unelected body to order funds to be appropriated when such funds would have to be raised by taxing or borrowing (“No taxation without representation”). More likely, it recognizes the political reality that courts have no real means to enforce such an order against an unwilling legislature.

Yet, Article III of the Constitution explicitly permits suits in federal court between states and various opponents, from the United States to foreign countries and their citizens, to other states and their citizens. It was argued that, by approving the Constitution, the states to that extent surrendered their sovereign immunity. So, too, thought Alexander Chisholm, the executor for one Robert Farquhar of South Carolina, when he attempted in 1793 to collect on a debt owed to the deceased by the State of Georgia for goods supplied to that state during the Revolutionary War. Georgia had refused to pay for the supplies on the convenient excuse that Farquhar was a British loyalist, though apparently a not-too-principled one.

Chisholm sued Georgia in the Supreme Court. Indeed, he was able to get the attorney general of the United States, Edmund Randolph, to argue the case for him. Georgia, relying on its sovereignty, deigned not even to appear so as not to give legitimacy to this judicial affront to its dignity, though it sent the justices a letter of protest denying their jurisdiction to hear the case. The justices ruled 4-1 against the state, on the aforementioned ground that the states had surrendered aspects of their sovereignty as the text of Article III makes clear, and, in Justice James Wilson’s scholarly opinion, on the ground that states as such were not sovereigns at all.

However, the majority may have got it wrong. The Constitution permits suits “between a State and Citizens of another State.” The Chisholm justices suggested that “between” meant the suit could be brought by the state or by the citizen. But the order of parties in the text could also mean that only the state could bring the suit, especially in light of the common law prohibition of suits against unwilling sovereigns.

Significantly, the wording of Article III alarmed Antifederalists during the ratification debates. Alexander Hamilton, in Federalist 81, responded by imagining a hypothetical dispute brought by a citizen of one state against another state over public securities, such as bonds, issued by the latter. This almost exactly foretold Chisholm. Hamilton strongly defended the states’ immunity from suit as natural to sovereignty and reflecting general practice. He belittled the reasoning later advanced by the Chisholm justices as arising from mere implication and a “forced and unwarrantable” construction of the Constitution’s language.

The virulent reaction in the states against the Chisholm case supports Hamilton’s reading of the Constitution. States-rights supporters saw the decision as confirming their suspicion that the new constitution’s federal structure was a smokescreen to deprive the states of their sovereignty and reduce them to “tributary corporations” to the national government. A more concrete and immediate concern was that the decision opened the door for states to be sued over many unresolved war claims, a course that threatened their financial solvency.

In response, Congress proposed the Eleventh Amendment in 1794, which the states approved in less than one year, a record speed. While the Amendment prohibits only suits in federal court and only against a state by citizens of other states or foreign countries, the Supreme Court has held that the Amendment is just a particular example of the broader principle of sovereign immunity. The Court has ruled that a state also cannot be sued by its own citizens or in its own courts without its consent.

Does that mean that citizens are unable to have their rights vindicated against injurious government conduct? Not at all. Similar to what Blackstone opined was English practice, the Supreme Court has recognized a significant exception that allows suits against state officials, if such suits do not, in effect, seek money damages to be pried out of the state treasury. Thus, a state official can be sued to order him to refrain from engaging in violations of the petitioner’s constitutional rights. State sovereign immunity also does not prevent suits against cities and other local bodies. In limited cases, Congress can restrict the states’ sovereign immunity by statute. The United States in some instances can sue states to challenge violations of individual rights created under federal statutes. If a state initiates an action against a defendant, he can bring claims and defenses against the state arising out of the state’s suit.

Finally, the states can consent to be sued for injuries committed by their officials. It may seem counter-intuitive that governments would agree to be sued, but they generally have done so by laws that wholly waive their immunity (California) or that waive it in specified instances (the United States). Such consent meets political demands for compensation of injured parties, and it is more efficient than the previous alternative of having legislators laboriously introduce private bills of relief to be passed as ordinary laws.

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

April 17, 2012 

Essay #42 

 

Guest Essayist: Brion McClanahan Ph.D., author of The Founding Fathers Guide to the Constitution

http://vimeo.com/40431786

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Modern Issues Of States’ Rights
Ninety percent, if not more, of what the central government does today is unconstitutional. All of the following legislation violates the Tenth Amendment: national healthcare, welfare, all federal education programs, federal highway construction and funding, the National Defense Authorization Act, gun control, the Federal Reserve System, etc., and these are just some of the large issues. An itemized list based on a modern federal budget would be too substantial to publish in a book length project, let alone a short essay. Proponents of the Tenth Amendment in the founding generation viewed it as a necessary check on the power of the general government and in particular the famous “sweeping” or “elastic” clauses of the Constitution, i.e., the “general welfare clause,” the “supremacy clause,” the “necessary and proper clause,” and now the infamous “commerce clause.” The Tenth Amendment was designed to keep domestic issues under the purview of the States and leave matters of commerce (meaning interstate and international trade) and defense in the hands of the general authority. In essence, every time the central government abuses its Constitutional authority it is violating the Tenth Amendment. But for the sake of argument, the most important and egregious violations of the Tenth Amendment today are as follows:

“Obamacare”: Regardless of what the Supreme Court decides in June, the “Affordable Care Act” is a gross violation of the Tenth Amendment to the Constitution. In fact, the States would do well to individually strike it down by invoking the Tenth Amendment, as Thomas Jefferson and James Madison did with the Virginia and Kentucky Resolutions of 1798 in response to the blatantly unconstitutional Sedition Act. As per Article 1, Section 8, regulating healthcare is not one of the delegated powers of the general government, and the commerce clause does not apply in this case because the general government cannot regulate the commercial exchange of individuals nor can it mandate that individuals engage in a commercial activity. Proponents of the Constitution continually argued in 1787 and 1788 that if the Constitution was mute on an issue, then the general government did not have the said power. The States, however, can, and thus if the States want to address healthcare, and the respective State constitution allows it, they are free to do so.

The National Defense Authorization Act for 2012: While this piece of legislation has support among Republicans, it unconstitutionally enlarges the powers of the executive branch and has the potential to place all American citizens under martial law, thus unconstitutionally suspending the civil court system in the United States. The general government cannot constitutionally interfere with the State judicial systems nor can it constitutionally give the executive branch the power to suspend habeas corpus. Those are not delegated powers in the Constitution and thus violate the Tenth Amendment. Abraham Lincoln unilaterally suspended habeas corpus in 1861 and while Attorney General Edward Bates supported it and the Congress retroactively “authorized” it, he was heavily criticized at the time. The Supreme Court even struck down his heavy handed tactics and later negated congressional attempts to supersede State courts with military tribunals during the Reconstruction era. Congress has forgotten or neglected to remember those decisions.

The Federal Reserve: The FED is at the heart of the current economic meltdown, and central banking has long been a contentious issue in American politics. During the Philadelphia Convention in 1787, the Pennsylvania delegation suggested giving the power for chartering a bank to the Congress but were soundly defeated. No matter. In 1791, Alexander Hamilton made a central bank “constitutional” by stretching the “necessary and proper clause” of the Constitution, something he said would never happen when arguing for ratification in the Federalist essays. The Bank of the United States failed re-charter in 1811 but was replaced with another in 1816, with James Madison’s support. His reason was dubious. Time and circumstances, he said, had made the Bank constitutional. Central banking supporters never looked back. Of course, Andrew Jackson destroyed this Second Bank of the United States, but the legislative precedent had been set. When the “Creature of Jekyll Island,” also known as the Federal Reserve System, appeared in 1913, thanks to Hamilton, Madison, and John Marshall who ruled the Bank was constitutional in the infamous 1819 McCulloch v. Maryland decision, no one questioned its constitutionality. But, if Americans followed the Constitution as ratified and amended by the Tenth Amendment, the Federal Reserve would fail the constitutional sniff test. Chartering a bank or a central banking system is not a delegated power of the general government.

All Social Welfare Legislation Including Education and Entitlement Spending: In the 1942 Supreme Court decision Wickard v. Filburn, the Court found that anything that might be considered “interstate commerce” fell under the authority of federal regulation, including economic activity such as growing your own food on your own land. In essence, the “commerce clause” has become the “Hey, you-can-do-whatever-you-feel-like Clause,” as federal judge Alex Kozinski pointed out in 2005. All federal social welfare spending falls either under the so called “commerce clause” or the “general welfare clause,” and according to the founding generation both were restricted by the Tenth Amendment. None of this legislation can be found in the enumerated powers of Article 1, Section 8 unless they are “stretched,” something opponents of the Constitution feared would happen. That was the driving force behind a “States’ Rights” amendment in the Bill of Rights to begin with. If the States had a backbone (and were not slopping at the federal trough) they would interpose their control over such issues, invoke the Tenth Amendment, and strike them from the books.

In 1788, Tench Coxe of Pennsylvania, an ardent supporter of the Constitution and member of the Continental Congress, wrote that,

[The general government] cannot interfere with the opening of rivers and canals; the making or regulation of roads, except post roads; building bridges; erecting ferries; establishment of state seminaries of learning; libraries; literary, religious, trading or manufacturing societies; erecting or regulating the police of cities, towns or boroughs; creating new state offices, building light houses, public wharves, county [jails], markets, or other public buildings…nor can they do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive, or judicial, civil or ecclesiastical.

And later he said, “In short besides the particulars enumerated, every thing of a domestic nature must or can be done by them [the States].” Translation, the general government in Washington D.C. cannot constitutionally do most of what it does today. To proponents of a Bill of Rights, the Tenth Amendment was there to legally ensure Coxe was correct. The Tenth Amendment is more than a protection of “States’ Rights,” it is a check on a tyrannical and unconstitutional abuse of authority by the central government.

Brion McClanahan holds a Ph.D. in American History from the University of South Carolina. He is the author of The Founding Fathers Guide to the Constitution (Regnery History, 2012), The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009), and Forgotten Conservatives in American History (forthcoming with Clyde Wilson, Pelican, 2012).

April 16, 2012 

Essay #41 

Guest Essayist: George Landrith, an attorney and President of Frontiers of Freedom

http://vimeo.com/40278141

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment:
Protecting Freedom Against Big Government

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment protects Americans from big, intrusive federal government action. The heart of the Tenth Amendment is that the federal government has only those powers explicitly listed in the Constitution and all other powers are reserved to the States and to the people, and therefore explicitly denied to the federal government.

In contrast, state governments have all powers not explicitly prohibited or withheld by the state constitution or by the U.S. Constitution. Thus, states have broader powers and can, do things that Congress cannot do. For example, states can require young students to attend school and drivers to purchase automobile insurance.

Too often those in Congress and the White House assume that the federal government can do whatever the majority wishes. However, the Founders clearly and explicitly intended to prevent the majority from doing whatever it wished. Thus, they gave the federal government a very limited and carefully chosen list of powers and they reserved all other powers for the states and the people. They also provided an elaborate system of checks and balances – all to limit the power of the majority to impose its will.

The Founders felt so strongly about limited federal power as a bulwark of liberty that they added the Ten Amendment as the final exclamation point in the Bill of Rights – the federal government could not trample the rights of the people by assuming powers that it did not have, and that had been reserved to the states and the people.

At the heart of the debate over Obamacare before the Supreme Court is the question – does the federal government have the authority under the U.S. Constitution to require citizens to purchase a product? If the justices can read and understand the simple language of the Constitution, they will strike down the law because the federal government does not have the authority to do what it attempted to do in this statute.

This author is not a supporter of the Massachusetts healthcare law, but it is constitutional. There are significant differences between the Massachusetts law and ObamaCare, but perhaps the biggest difference is that Massachusetts had the authority to pass its healthcare law. That doesn’t mean it was a good idea, it just means it was constitutional. But the federal government did not have the authority to pass Obamacare. Obamacare exceeds the enumerated and limited powers given to the federal government and the limitations of the Tenth Amendment.

The Tenth Amendment is also an explicit statement of the governing principle of federalism. Federalism is the idea that there is a national government with limited powers and there are state governments with broader powers, both receiving their authority from the people. Simply stated, federalism recognizes the fact that the states are not merely political subdivisions of the federal government, but that they are separate governmental units that derive their power directly from the people and not from the federal government.

These are not old fashioned or outdated ideas. They constitute real and practical protections against the bullying powers of big government on the federal level. The Founders put in place checks and balances, limitations on power, and divisions of power – all designed to keep federal government from becoming too big, too powerful, and too intrusive. The Tenth Amendment is key to their wise designs to limit the power and scope of the federal government.

George Landrith is an attorney and the President of Frontiers of Freedom

April 13, 2012

Essay #40

– Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

http://vimeo.com/40200787

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

THE TENTH AMENDMENT

Statements about the Tenth amendment tend towards opposing extremes. Some cite the Amendment in claiming more powers than the Constitution actually leaves in the states. On the other side, some claim that the Amendment is merely a “truism,” implying it does virtually nothing. The actual meaning of the Amendment lies in between these two one-sided views.

The Tenth Amendment reads as follows:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The most important word is the one that does not appear in the text, i.e., “expressly.” It is common for those who place great weight on the Tenth Amendment to state incorrectly that the Amendment says “powers not expressly delegated to the United States…” The Amendment, however, pointedly omits the word expressly.

By contrast, somewhat similar language in the Articles of Confederation did include the word expressly.
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. (emphasis added)

What difference in meaning does the word “expressly” make? The difference is that which distinguishes a confederation from a government. The Articles of Confederation provides that “The said States hereby severally enter into a firm league of friendship with each other…” (emphasis added). The Articles recognize that the States retained their full sovereignty and entered into a special kind of alliance or league. The Articles constitute a treaty involving multiple sovereignties and having several purposes. As a treaty, however, it is still a contract and each State delegates only those powers expressly written into the contract. Although “[t]he Articles thereof shall be inviolably observed by the States,” the document creates no government having the power to enforce its provisions. It provides only for states to send representatives to meet as the “United States in Congress” and to manage those powers expressly given.

The Constitution that emerged from the Convention, as all understood, was not a confederation or simply a league of friendship. Opponents of the Constitution, known as the Antifederalists, concluded that therefore the Constitution would create a consolidated or centralized government. The Federalist (written by Madison, Hamilton and Jay under the pseudonym of “Publius”) countered that the Constitution created a federal government of only limited powers and left most powers of government in the states.

Not persuaded, the Antifederalists contended that the Constitution’s limits on the federal government could and would be swept aside by its “necessary and proper clause.” Their arguments in opposition to the Constitution emphasized the document’s lack of a bill of rights. They urged that a statement of rights was necessary to protect liberty by limiting the power of the federal government and specifically to undo the effect of the “necessary and proper” clause.

The Constitution drafted at the Constitutional Convention contained no bill of rights. This was not an oversight. The Convention voted down George Mason’s proposal that a bill of rights be added. Moreover, during the Ratification period, The Federalist (#84) argued “that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.” A bill of rights was unnecessary because “a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation.” It was dangerous because it “would contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than was granted.”

The Federalists and Antifederalists held opposing ideas about the best means to protect liberty. Whereas the Antifederalists gave priority to bills of rights, the Federalists distrusted the efficacy of such “parchment barriers.” Rather the Federalists drafted the Constitution on the premise that protecting liberty requires a structure of separation of powers within the federal government and a division of powers between the federal and state governments. For that reason, The Federalist said “The truth is … that the constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”

Predictions of both the Antifederalists and Federalists have proved in part to be accurate. As the Antifederalists feared, the Necessary and Proper Clause has been used to expand the powers of the federal government greatly at the expense of the states, a trend aided (as discussed in a later essay) by the Seventeenth Amendment. The Federalists were correct that the Bill of Rights, aided by the Fourteenth Amendment’s judicially-developed doctrine of Incorporation, has been used to expand the powers of the federal government at the expense of the states.

The foundational explanation of the Necessary and Proper Clause came in Chief Justice Marshall’s opinion in McCulloch v. Maryland (1819). The opinion addressed the Necessary and Proper Clause as an additional, not the primary, reason for upholding the constitutionality of the Bank of the United States. Jeffersonian Republicans, many of whom had been Antifederalists, opposed this decision as an unconstitutional expansion of Congress’s powers. Chief Justice Marshall’s opinion, however, was perfectly consistent with, and generally tracked language in several essays from, The Federalist.

Over the years, especially since the New Deal, the centralizers of national power have often relied on a distorted interpretation of the Necessary and Proper clause which disregards the fundamental principle that the federal government is one of limited powers. Accordingly, they dismiss the Tenth Amendment as simply a “truism.” The defenders of state power, on the other hand, emphasize the Tenth Amendment, almost as if nothing else in the Constitution matters. They generally fail to understand The Federalist explanation – confirmed by Chief Justice Marshall’s opinion in McCulloch – that Congress has the fullness of those powers actually given to Congress and that the Constitution includes the Necessary and Proper Clause in order to leave no doubt about the fullness of the powers actually given.

When during the First Congress James Madison spoke for the Bill of Rights he had introduced, among other points he argued that they were of “such a nature as will not injure the Constitution.” Specifically, what became the Tenth Amendment did not injure the Constitution because it did not convert it to a confederation. That is to say, the Tenth Amendment pointedly did not use the word expressly.

As to any power actually given by the Constitution, Congress has the fullness of that power. Congress’s exercise of power is nevertheless limited– first by the fact that it is not given every power of government. Secondly, Congress encounters procedural limits on the implementation of its enumerated powers due to bicameralism and separation of powers. The division of powers between the federal and state governments which effectively limited Congress’s exercise of enumerated powers has been undermined by the Seventeenth Amendment’s provision for direct election of senators.

The U.S. government has over the years consolidated power to a degree feared even by the Federalists, and much more so by the Antifederalists. To point solely to the Tenth Amendment, however, as the primary limit on the expansion of federal power is to misunderstand the Constitution. The Tenth Amendment is a ‘truism” in the sense that it merely confirms that the Constitution creates a federal government with a limited number of powers, those related to national defense, foreign affairs, foreign trade, and trade among the states. See Federalist # 23 and #45. Like the Necessary and Proper Clause, a proper interpretation of the Tenth Amendment must be connected to the Constitution’s structure of divided and separated power.

Dr. John S. Baker, Jr. is the Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.

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April 12, 2012

Essay #39

Guest Essayist: Brion McClanahan Ph.D., author of The Founding Fathers Guide to the Constitution

http://vimeo.com/40152775

Amendment IX:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In the waning days of the Philadelphia Convention in 1787, George Mason of Virginia, Elbridge Gerry of Massachusetts and Luther Martin of Maryland began pressing for the addition of a comprehensive bill of rights to the final draft of the Constitution.  Roger Sherman of Connecticut immediately rejected their plea.  A bill of rights, he said, was unnecessary because “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient….”  Sherman, a man who Thomas Jefferson regarded as one of the finest statesmen of the founding generation, reasoned that because the Constitution was mute on civil liberties and because it was a document with delegated and enumerated powers for the general purposes of the Union—the States United—the general government could no more legislate on matters of trial by jury than it could on the minutia of state law.  Gerry’s proposal to form a committee to draft of a bill of rights was unanimously defeated (votes were by State), and as a result Mason said he would rather cut off his right hand than sign the document.  This exchange began the process for codifying the language of the Ninth Amendment.

During the ratifying process in the State conventions, several leading proponents of the document made arguments against a bill of rights that mirrored those Sherman gave in the Philadelphia Convention.  James Wilson of Pennsylvania, perhaps the most ardent nationalist among the founding generation, said in the Pennsylvania Ratifying Convention that “A bill of rights annexed to a constitution is an enumeration of the powers reserved.  If we attempt an enumeration, every thing that is not enumerated is presumed to be given.  The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete.”

Alexander Hamilton of New York, the most famous nationalist of the founding period, echoed Wilson in Federalist No. 84.  Adding a bill of rights, he said, “would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.  For why declare that things shall not be done which there is no power to do?”   Both Hamilton and Wilson contended that a bill of rights would destroy liberty rather than protect it by allowing scheming men to enlarge the power of the central authority.  In short, if a particular liberty was not protected by the list of rights, they believed it could be assumed that the government had the power to abridge that liberty.  And, since all powers delegated to the general government were enumerated in the Constitution, they wondered why open that Pandora’s Box?

Thus, the modern Ninth Amendment was born.  As proposals for a bill of rights flooded into James Madison’s hands in the months after the Constitution was ratified, he quickly realized that individuals needed assurances that their liberties would not be circumscribed by the Constitution nor would they be left to flutter in the wind should ambitious men usurp power from the States or the people.  The Tenth Amendment protects the States and most importantly the federal compact among the States.  The Ninth does the same for the people individually by implicitly recognizing the validity—and to the founding generation supremacy—of the several State declaration of rights.  It is an enhancer.  The original preamble to the Bill of Rights expressly stated that they were “restricting clauses” on the general government only.  The Ninth Amendment ensured that the powers of the general government as operating on individuals would be further checked by the States.  State declaration of rights often tended to be more detailed and comprehensive and therefore served as a more effective shield for the people.

Madison said in 1789 that Hamilton’s argument against the Bill of Rights was “one of the most plausible…I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against.”  He was referring to the Ninth Amendment.  Of course, the powers of the general government in the modern era have spiraled out of control and today the two most ignored Amendments in the Bill of Rights are the Ninth and Tenth, arguably the most important Amendments to the founding generation.  The States have always stood at the vanguard of individual liberty.  American citizens should remember that their first line of defense against both the State and Federal government rests in their separate State bill of rights.  The founding generation believed that those declared rights coupled with the Ninth Amendment would prevent the modern leviathan in Washington D.C.  We need to protect their legacy.

Brion McClanahan holds a Ph.D. in American History from the University of South Carolina.  He is the author of The Founding Fathers Guide to the Constitution (Regnery History, 2012), The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009), and Forgotten Conservatives in American History (forthcoming with Clyde Wilson, Pelican, 2012).

April 11, 2012 

Essay #38 

Guest Essayist: W.B. Allen, Dean Emeritus, James Madison College; Emeritus Professor of Political Science, Michigan State University

http://vimeo.com/40060581

Amendment 9 – Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The 9th Amendment to the Constitution was one of twelve submitted to the states for ratification in fall, 1789.  Ten of the twelve were ratified by December 15, 1791, and came to be known as the “Bill of Rights.”  An eleventh, the 27th Amendment, was ratified May 7, 1992.  The final of the twelfth, applying the relevant terms of the “Bill of Rights” to the states was never ratified.  However, the Supreme Court in the 20th Century adopted a doctrine of “incorporation” which imported many of the guarantees of the “Bill of Rights” as applying against the states through the 14th Amendment, adopted during the process of Reconstruction following the 1861-65 War for the Union.

The context for interpreting the 9th Amendment, therefore, is focused on the controlling ideas informing the “Bill of Rights.”  The Supreme Court has never provided clear guidance concerning the 9th Amendment itself.  A fundamental principle of constitutional interpretation, however, is that every article bears some intentional meaning which remains significant in understanding at minimum the intentions of the framers and the design of the institutions of self-government framed by the Constitution.  In that sense, we may take the 9th Amendment to refer primarily to the question of the breadth of the guarantees mentioned in the other articles of the “Bill of Rights.”  This follows the debate that took place over the ratification of the Constitution, in which the Antifederalists chiefly criticized the draft constitution as over-broad and threatening the rights of the people and their state institutions with the prospect of an unlimited federal/national government.  The defenders of the Constitution (the Federalists) responded that the guarantees of individual rights familiar in most of the state constitutions of the founding era should not be included in a federal constitution precisely because the federal constitution was not designed to convey the kind of police power (health, safety, and morals) that would imperil individual rights, reserving that jurisdiction to the states.  That argument is made most forcefully in essay number 84 of The Federalist Papers.  An additional argument made there is the argument that any determinate listing of guaranteed rights would bear the unfortunate implication that any specific guarantees omitted in the process of listing specific rights would imply the existence of a governmental power that had not been intended.

Once, therefore, the political compromise of adding a bill of rights to the constitution had been accepted, the authors of the amendments (mainly James Madison) thought it important to do everything possible to avert any unintended consequences of such an enumeration of rights.  The 9th of Amendment is the first of two deliberately intended to restrict the breadth of the application of those guarantees in such a manner as neither to imply unlimited power in the federal/national government nor to imply individual rights were exhausted by such an enumeration.  In that sense, the 9th Amendment creates a shadowy, unspecified realm in which certain additional rights may be discovered as reserved to the people and, to that extent, thus brought under the controlling language of the 1st Amendment, namely, that “Congress shall make no law respecting” such additional rights.  It is in that spirit that the Supreme Court in the 1965 Griswold v. Connecticut, 381 U.S. 479 decision discovered a constitutional “penumbra” within which a “right to privacy” sheltered and served to proscribe state prohibition of access to contraception.  It was because of the incorporation doctrine through the 14th Amendment that the Court was able to make use of the “Congress shall make no law respecting” the unspoken right to privacy language to enunciate a limit upon the states.  Though the Court has never said so, it should logically follow, therefore, that such a proscription against state policy can only be considered authoritative to the extent that it operates with equal effectiveness against the federal/national government.  For the language of the 9th Amendment is primarily a language of restriction on the federal/national government, as are all of the “Bill of Rights”, and in the absence of ratification of the drafted 12th amendment, applying the same terms to the states, the primary meaning of all such language must be that it is a limitation upon the government of the United States.  Besides contraception, the areas in which such application has occurred have been the parental right to educate children, the right to study a foreign language, the right to make and enforce contracts, etc.

W. B. Allen is Dean Emeritus, James Madison College; and Emeritus
Professor of Political Science, Michigan State University

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April 10, 2012

Essay #37

Guest Essayist: Matthew Mehan, Publius Fellow and U.S. History Teacher

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

The adoption of this terse amendment, the shortest of them all, inspired very little debate among our founding fathers. These sixteen words reflect the hard-won and long-defended consensus of free society that just government remains so only if its punishments correspond proportionally to the crimes committed.  The 8th Amendment stands as a testament to the humanism of our Constitution, which makes clear that the government of a free people must be known not for its severity, but instead for its measured humanity.

Each of the three components of the amendment aim to limit one of the government’s discretionary powers: (1) setting bail; (2) imposing fines; and (3) sentencing.  The amendment implicitly recommends that the legislature specify proportional guidelines for these broad powers: how much bail; how high the fines; and how long or difficult the sentence.  The wisdom of having such an amendment stems from abuse of these powers dating back as far as the expansion of monarchical courts under William the Conqueror. William’s descendent, King John, saw these powers greatly limited by the Magna Charta, which sought to reign in the king’s unlawful use of royal courts.  And the language of the 8th Amendment is taken almost word for word from the 1689 English Bill of Rights, which reaffirmed these limitations on the monarch, in this case, the Stuart dynasts.  And in our own day, for the “excessive fines” clause to be applied, the Supreme Court ruled as recently as 1993 that “there must be a payment to a sovereign as punishment for some offense.”  From its historical origins to the present day, the amendment’s primary focus has remained the same: the restriction of the sovereign government in favor of the liberty of a defendant.  The 8th Amendment goes further than enumerate a federal power; it advises the legislature to do what the common law has always done, namely specify, as Blackstone put it, “the nature, though not the quantity or degree, of punishment…for every offence….”  By doing so, the amendment protects the liberty of all, “for,” as Blackstone continues, “if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates; and would live in society, without knowing exactly the conditions and obligations which it lays them under.”

A humane and just government, therefore, must permit reasonable accommodation for pre-trial liberty for those accused of a crime but not yet convicted.  Thus, (1) “excessive bail shall not be required” because, if a citizen is innocent until proven guilty, then the citizen ought to have his or her liberty by means of reasonable bail even when accused.  The Supreme Court has upheld some exceptions for those accused of particularly dangerous crimes, but overall, the amendment and subsequent case law have protected citizens’ pre-trial liberty and right to post bail.

A humane and just government must not (2) impose “excessive fines.”  The 8th Amendment has been used by the courts to limit fines and penalties on the basis established in a 1998 case that those fines were “grossly disproportional to the gravity of a defendant’s offense.”  By limiting the potentially capricious punishment of excessive fines, the amendment has made for a more peaceful and predictable civil society, one freer from unforeseen onerous fines, which confiscate property and lead to possible imprisonment.

And finally, a humane and just government does not (3) inflict “cruel and unusual punishment.”  The Supreme Court first saw this clause as a bar on brutal punishments extant at the time of the founders, horrors such as disembowelment or being dragged to execution.  But the Warren court and due process has expanded this clause’s application to a whole host of considerations as to what constitutes “cruel and unusual punishment,” including deciding whether capital punishment is a disproportional penalty for certain crimes.  While perhaps our founders would not have approved of its modern and wider application, nevertheless, the 8th amendment continues to function as a warning to government lest it become too severe or capricious in its task of punishment.

Matthew Mehan is, among other things, a U.S. history teacher in Washington DC.

April 9, 2012

Essay #36

Guest Essayist: Nathaniel Stewart, Attorney

http://vimeo.com/39872908

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Early Origins of the 8th Amendment’s

“Cruel and Unusual Punishments” Clause

Like many provisions of the Constitution and the Bill of Rights, the protection against “cruel and unusual punishments” prescribed in the 8th Amendment has deep English roots.  The text of the 8th Amendment is taken almost verbatim from England’s Declaration of Rights of 1689, an indictment of King James II that reads rather like our own Declaration of Independence and accuses the king and his government of mistreating the people and subverting the law.

Historians generally agree that the “cruel and unusual punishments” clause of the English Declaration of Rights was in response to abuses by the infamous Lord Chief Justice Jeffreys of the King’s Bench during James II’s reign.  Lord Chief Justice Jeffreys presided over the “Bloody Assizes”—a special commission that tried, convicted, and executed hundreds of suspected rebels following the failed rebellion in 1685.  The Bloody Assizes carried out punishments that included drawing and quartering, burning, beheading, and disemboweling those convicted.  But these punishments, as vicious as they might sound to us today, were specifically authorized by law at the time.  More recent scholarship suggests that it was not the nature of the punishments that led to the Declaration of Rights provision, but the arbitrary sentencing power that Jeffreys had used in sentencing those found guilty.  Many believed that Jeffreys was merely inventing special penalties for enemies of the king, and that those penalties and punishments were not authorized by the common law or by statute.

Thus, the Declaration of Rights objects to the “illegal and cruel punishments inflicted . . . All which are utterly and directly contrary to the known laws and statutes and freedom of this realm.”  1 Wm. & Mary, Sess. 2, ch. 2 (1689).  Legal discussions at the time of the Declaration of Rights indicated that a punishment was not considered wrong only because it was severe or even disproportionate to the crime; but a punishment was “cruel and unusual” if it was “out of the Judges’ power,” “contrary to the law and ancient practice,” “without precedent,” “illegal,” or imposed by “pretence to a discretionary power.”  The phrase “cruel and unusual” was often synonymous with “cruel and illegal.”

By the time of America’s founding many of the colonies had constitutions with provisions very similar to the “cruel and unusual punishments” clause of England’s Declaration of Rights.  In 1791, five States prohibited “cruel or unusual punishments, and two more States prohibited “cruel” punishments.  The U.S. Constitution’s Bill of Rights ultimately followed Virginia’s prohibition of “cruel and unusual punishments.”

Because there were no federal common-law punishments, the clause effectively served as a check upon the Congress, not upon federal judges, so there is some question as whether “unusual punishment” continued to mean a punishment “contrary to law” as it had meant under English law.  Instead, “unusual punishment” came to mean one that “does not occur in ordinary practice.”  Webster’s American Dictionary (1828).  It is widely believed that by forbidding “cruel and unusual punishments,” the 8th Amendment prevents Congress from authorizing particular kinds or modes of punishment, especially cruel methods of punishment that are not regularly or customarily used.

The debates in the state ratifying conventions support the idea that the “cruel and unusual punishments” clause was designed to prohibit certain forms of punishment.  In the Massachusetts Convention in 1788, for example, one objection to the Constitution (without a Bill of Rights) was that Congress was “nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on it, but that racks and gibbets may be amongst the most mild instruments of discipline.”  2 J. Elliot, Debates on the Federal Constitution 111 (2d ed. 1854).  A Bill of Rights was needed, they argued, in order to prevent Congress from “inventing” such punishments and resorting to vicious types of discipline.

Early commentaries on the Amendment also indicate that it was designed to outlaw certain types of punishment:  “The prohibition of cruel and unusual punishments, marks the improved spirit of the age, which would not tolerate the use of the rack or the stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion.”  J. Bayard, A Brief Exposition of the Constitution of the United States 154 (1840).  And, as Justice Story observed in his Commentaries on the Constitution, the 8th Amendment was “adopted as an admonition to all departments of the national government, to warn them against such violent proceedings, as had taken place in England in the arbitrary reigns of some of the Stuarts.”  3 J. Story, Commentaries of on the Constitution of the United States § 1896 (1833).

As the history and origins of the 8th Amendment make clear, criminal punishments should not be arbitrary or exacted by judges contrary to the law; and neither should they be “unusual” or torturous methods of discipline that are beyond the ordinary forms of reproach.  The 8th Amendment helps to protect against such punishments, and is yet another example of the Founders drawing upon their understanding of the rights of Englishmen, adapting the rights and laws of England to their own circumstance and government, and learning the lessons of history so as not to repeat the same mistakes.

Nathaniel Stewart is an attorney in Washington, D.C.

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April 6, 2012

Essay # 35

Guest Essayist: Allison R. Hayward, Vice President of Policy at the Center for Competitive Politics

http://vimeo.com/39813188

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Excessive Fines Clause

The Eighth Amendment declares excessive fines to be unconstitutional.   Along with the other clauses of the amendment, which prohibit excessive bail and cruel and unusual punishment, this clause sought to protect Americans against prosecutorial overreach by the government.

The Eighth Amendment echoed Art I, § 9, of the Virginia Declaration of Rights, which itself appropriated from the English Bill of Rights. Section 10 of the English Bill of Rights of 1689, like our Eighth Amendment, stated that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.”

The 1689 English version was meant to curb abuses by English judges. During the reigns of the Stuarts, judges had imposed heavy fines on the King’s enemies.  In the 1680’s in particular, the use of fines became even more excessive and selective, and opponents of the King who could not pay were imprisoned.  The authors of the 1689 Bill of Rights knew this only too well – having been themselves subjected to selective and heavy fines by the King’s judges.

The Eighth Amendment in general received little debate in the First Congress, and the Excessive Fines Clause received even less attention. Perhaps this is because the wisdom of these limitations was obvious to the Framers; at least eight of the original States that ratified the Constitution had some equivalent of the Excessive Fines Clause in their respective Declarations of Rights or State Constitutions.

Even so, there are two obvious ambiguities in the clause that have required interpretation.  First, what kinds of payments are “fines?”  Second, what fines should be considered “excessive?”

I.      What is a fine?

Given that the Eighth Amendment is identical to a clause from the English Bill of rights, it is useful to know what a “fine” was thought to be in English law.  English cases immediately prior to the enactment of the English Bill of Rights stressed the difference between civil damages and criminal fines. Lord Townsend v. Hughes, 2 Mod. 150, 86 Eng. Rep. 994 (C. P. 1677).  A fine was defined as a payment to the state, not a state-ordered payment to another private citizen.  Accordingly, court-ordered damages paid to a private litigant, even punitive damages, have been held not to implicate the Eighth Amendment.  Browning-Ferris Industries v. Kelco Disposal, 492 US 257 (1989). However, asset forfeiture, which requires property to be awarded to the government as punishment for some offense, is subject to the Eighth Amendment.  Austin v. United States, 509 U.S. 602, 622 (1993).

II.     When is a fine “excessive?”

Whether a fine is excessive depends on its proportionality.  That is, the amount of the forfeiture must bear some relationship to the gravity of the offense that it is intended to punish. Austin v. United States, 509 U. S., at 622-623.  In the case of a monetary fine, a court would consider whether the value of the fine is in relation to the seriousness of the offense.  A hypothetical extreme example would be exacting a million dollar fine to punish jaywalking.  Closer cases are naturally harder to judge.

Unfortunately, the fines English judges had imposed were never described with much specificity.  None of these sources suggests how out of proportion a fine must be in order to be deemed constitutionally excessive.

The Supreme Court has addressed this issue in a handful of cases.  It has concluded that a forfeiture of hundreds of thousands of dollars is disproportionate when a defendant is guilty only of a failure to declare the funds when leaving the country.

United States v. Bajakajian, 524 U.S. 321 (1998). In the in rem asset forfeiture context, Justice Scalia has observed that the Constitution should prohibit seizure of property that cannot properly be regarded as an instrumentality of the offense— for example the building in which an isolated drug sale happens to occur. For him, the right question here is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.

The Supreme Court has noted that legislatures have the primary duty to decide what fines are proportionate, and deserve deference to make such standards. The Court’s present interpretation of the excessive fines clause will reject an unconstitutionally excessive fine only when the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense.  As a result, the Eighth Amendment protects citizens against the most outrageous fines, but not against large but less extreme fines.

For further reading: Laurence Claus, Methodology, Proportionality, Equality: Which Moral Question Does the Eighth Amendment Pose? 31 Harvard J. of Law and Pub. Pol’y 38 (2008).

Allison Hayward graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis.  She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit.  Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics.  She is an active member of the California and Washington, D.C. bars, and she is a certified FINRA arbitrator.

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April 5, 2012

Essay #34

 

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

http://vimeo.com/39746844

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment VIII: Reasonable Bail

After arrest, a criminal defendant can be released if he offers some security to ensure he will appear at trial. The release and required security are called bail. Bail protects “the defendant’s interest in pretrial liberty and society’s interest in assuring the defendant’s presence at trial.” The idea is to set bail high enough that the person charged with a crime would not want to risk forfeiting it by refusing to show up at trial but not so high that a person can’t pay and go about life as normally as possible during the interim between arrest and trial. Other considerations will be the risk that the defendant would commit the same crime again while on bail. Donald B. Verrilli, Jr., “The Eighth Amendment and the Right to Bail: Historical Perspectives” Columbia Law Review, vol. 82, p. 328 (1982).

In some circumstances, the crime is so serious or the risk that the defendant would flee so great that bail would be entirely denied. For instance, in the past month or so, a British citizen accused of facilitating weapons shipments to Iran was denied bail (http://www.forbes.com/sites/walterpavlo/2012/03/05/extradited-u-k-citizen-chris-tappin-denied-bail/) as was the doctor accused of causing the death of a pop musician (http://abcnews.go.com/US/michael-jacksons-doctor-conrad-murray-denied-bail/story?id=15784437#.T3C6BTFBt2A).

The disputes lingering from the English Civil War and simmering religious hostility led to the “abdication” (actually flight from England after it was invaded by William of Orange at the request of some of the English nobility) of James II as King of England in 1688. When Parliament formally invited William and Mary to reign as joint monarchs, they drafted the Bill of Rights of 1689 (http://avalon.law.yale.edu/17th_century/england.asp) as a formal statement of the rights of Englishmen they expected the new monarchs to respect and protect. They also laid out some complaints against James including: “excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.” They thus specified, “That excessive bail ought not to be required.”

Thus, the American colonists would have had an expectation, as Englishmen, of protection from excessive bail. The 1776 constitutions of a number of states specified protection of this right. The constitutions of Virginia, Delaware, and Pennsylvania enacted that year all prohibited “excessive bail.”

Given this history, it is not surprising that when James Madison was compiling proposals for a national Bill of Rights he would have included this requirement in what became the Eighth Amendment.

Of course, the key word is “excessive.” Requiring $1 million bail before releasing the celebrity who gets himself arrested on government property to draw attention to a cause is probably excessive. Someone charged of a string of armed bank robberies, however, could probably expect that kind of bail if flight risk is a consideration (although he may be able to afford it if guilty).

A recent news story (http://www.syracuse.com/news/index.ssf/2012/03/judge_questions_then_lowers_1.html) describes a situation where a man was stopped for traffic violations, searched and when a loaded weapon was found in his car, charged with felony gun possession crime. The bail was set at $1,000,000; another judge questioned that amount and the prosecutor asked for $50,000. The judge set bail at $10,000. Obviously, what some government officials find “excessive” will vary.

The Framers would insist that judges employ common-sense and fairness. That’s more likely where lawbreaking is not widespread and where citizens hold their leaders to account. Thus do rights on paper become rights in fact.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

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April 4, 2012

Essay # 33

 

Guest Essayist: J. Eric Wise, a partner at Gibson, Dunn & Crutcher LLP law firm

http://vimeo.com/39680022

Amendment VII:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

If you have good facts, pound the facts; if you have good law, pound the law; if you have nothing, pound the table.  Aside from the good rule of focusing attention on the areas where one’s case has strength, advocacy, as a form of rhetoric, also requires knowing your audience.  In American criminal and civil procedure, where there is a jury, the jury is a trier of fact and the judge makes determinations of law.

The jury is a legal invention that can be traced back to at least 11th Century England, when the Domesday Book was assembled from information gathered by juries empaneled to catalogue property holdings throughout the realm.  Juries of local people were assumed to be familiar with the local facts that would be the basis of the catalogue.

As the use of juries expanded, juries came to be considered a bulwark against tyranny, because while magistrates might align with a king, a jury of peers would check the king’s power at trial.  The Bill of Rights protects jury trials in civil and criminal matters.

The Sixth Amendment provides “In all criminal prosecutions, the accused shall enjoy the right to . . . trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”  The Seventh Amendment provides “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law.”

While most state constitutions have jury clauses, the Supreme Court has determined that the Sixth Amendment right to an impartial jury in criminal cases extends to the states through the operation of the Due Process Clause of the Fourteenth Amendment under the doctrine known as “substantive due process.”  However, the right to a trial in the state and district where the crime is committed, known as the Vicinage Clause, is not incorporated into the Fourteenth Amendment against the states.  The right to a jury trial in a civil case is also not protected in state proceedings, unless protected under state law.

In jury trials, judges do not try questions of fact.  Rather judges determine questions of law, including questions regarding the procedures by which the facts are developed in court.  Judges further instruct the jury as to what is the law to which the facts are to be applied.  In certain cases, juries may refuse to determine the facts at all and engage in what is known as jury nullification to satisfy its own views of what the law should be in the particular case.  Arguments run here and there as to whether this is a check and balance of the justice system or whether it is a dereliction of the duties of jurors.

In certain cases and courts the judge is both the trier of fact and the trier of law.  Commercial parties frequently waive the right to a jury trial.  Administrative courts, as administrators, and bankruptcy courts, as courts of equity, largely do not employ juries.  This is in part based on the opinion that the subject matter of administrative law and commercial issues may be too sophisticated for a jury.  Left and Right take varying and perhaps contradictory positions on this.  Some on the Right advocate for removal of juries in medical malpractice cases.  The plaintiffs bar howls.  The Left admires administrative law and great bureaucracies.  They call it job creation.  Almost all commercial interests are satisfied that juries are generally absent from involvement in bankruptcy cases, which require rapid determinations and understanding of complex financial issues.

As usual, Ronald Reagan may have put it best.  In his First Inaugural Address he said first:  “[W]e have been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people.  But if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?” and then he said “Now, so there will be no misunderstanding, it is not my intention to do away with government. It is, rather, to make it work—work with us, not over us; to stand by our side, not ride on our back.”

J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance.

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April 3, 2012

Essay # 32

Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

http://vimeo.com/39609587

Amendment VII:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Right to Trial by Jury in Civil Cases

No one likes jury duty. When the summons arrives in the mail, most Americans look to check the box that gets them out of service. Why lose a day of work to spend a day deciding some dispute about a fence or a car accident?

Far from a wasted day,  Alexis de Tocqueville praised the jury service in Democracy in America “as a school, free of charge and always open, where each juror comes to be instructed on his rights, where he enters into daily communication with the most instructed and most enlightened members of the elevated classes, where the laws are taught to him a practical manner and are put within reach within his intelligence by the efforts of the attorneys, the advice of the judge, and they very passions of the parties.” Indeed, de Tocqueville attributes Americans’ “practical intelligence and good political sense” to their maintenance of the civil jury.

At the Constitutional Convention, Hugh Williamson argued that the right to jury in civil trials should be included in the Constitution. Two delegates moved to insert the sentence “And a trial by jury shall be preserved as usual in civil cases” in Article III, but the Convention rejected this wording and did not include it in the Constitution.

Its absence proved to be a grave political miscalculation. The lack of a specific protection the right to trial by jury in civil cases accounted for the greatest opposition to the Constitution. The Anti-Federalists suggested that the absence meant that the right to trial by jury in civil cases would be abolished. The Federalists defended the omission by arguing that Congress, not the Constitution, should determine the rules for civil cases. But, this was a weak argument for two reasons. First, twelve of the states’ constitutions protected the right to trial by jury in civil cases. Second, during the American Revolution, the colonists objected that Parliament had deprived them of their right to trial by jury. It’s no surprise then that Congress passed the Seventh Amendment guaranteeing the right to trial by jury in civil cases without debate.

Justice Joseph Story argued in Parsons v. Bedford (1830) that the Seventh Amendment applied to all suits except suits of equity and admiralty. The Supreme Court, however, ultimately developed a more limited interpretation. The Court argued that the clause applies to the kinds of cases that existed under English Common Law when the amendment was adopted. The Seventh Amendment does not apply to civil cases that are “suits at common law.” It also does not apply to cases when “public” or governmental rights are at issue or when there are no analogous historical cases with juries. Personal and property claims against the United States by Congress do not require juries. Parties can waive the right to a jury in civil trials. Unlike in 1791, jury trials for civil cases no longer require a unanimous verdict from a 12-person jury.

In contrast to broad support for the right to trial by jury in the 18th century, modern jurists do not see the right to jury in civil trials as fundamental to the U.S. legal system. This explains why, unlike the Sixth Amendment’s protection of the right to trial in criminal cases, the Right to Jury in Civil Cases Clause is not incorporated against the states. Unlike the Sixth Amendment, the Seventh Amendment applies only in federal courts. The Seventh Amendment joins the Second Amendment and the Grand Jury Clause as the few parts of the Bill of Rights that the Supreme Court has not incorporated against the states.

When that jury summons arrives in the mail, we should think about service not as a wasted day but as an opportunity to participate in the justice system and to gain a deeper understanding of our rights. As Tocqueville remarked that serving on a civil jury “teaches men the practice of equity. Each, in judging his neighbor, thinks that he could be judged in turn. That is above all true of the jury in a civil matter; there is almost no one who fears being the object of a criminal persecution one day; but everyone can have a lawsuit.”

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

April 2, 2012 

Essay #31 

Guest Essayist: Nathaniel Stewart, Attorney

http://vimeo.com/39459584

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

 

Sixth Amendment Overview

The Sixth Amendment is the centerpiece of constitutional criminal procedure.  It forms the framework, the underlying first principles governing the process by which our society will try and treat those accused of a crime.  As the English legal philosopher, William Blackstone, famously quipped, “better that ten guilty persons escape than that one innocent suffer,” expressing the ancient axiom—dating even to Genesis—that the law should be made to punish the guilty, but not the innocent.[1]

The Sixth Amendment sets out the legal strictures and protections designed to protect society from its criminals, and protect the innocent from society.  To secure these protections, the Amendment prescribes three sets of rights: (1) the right to a speedy trial; (2) the right to a public trial; and (3) the right to a fair trial.

The Founding-generation was well aware that a speedy trial was a fundamental right of Englishmen.  It was approved by the First Congress without discussion.  The right to a speedy trial protects several related liberty interests, namely, the individual’s interests in avoiding a prolonged pretrial detention and in minimizing reputational damage due to an unjust or false accusation.  It protects the innocent from suffering a de facto punishment—a lengthy pre-trial detention—before ever having the chance to defend himself.  Furthermore, ensuring a speedy trial also helps to facilitate a fair trial—one designed to discover the truth of the matter, not just a verdict—since a prolonged delay may harm the accused’s legal defense as memories fade, evidence is lost or destroyed, or witnesses die or move away.  The Founders made sure that the government could not merely charge the accused with a crime, infringe upon his liberties, damage his public reputation, and then fail to give him a legal forum for mounting a defense and clearing himself of the allegations.  A defense must be afforded quickly, for as another old saying goes, “justice delayed is justice denied.”[2]

The right to a public trial is “a trial of, by, and before the people.”[3] As one legal scholar succinctly put it, a trial should be “a public thing, the people’s thing,” and included in the right to a public trial are “the rights to (a) a trial held in public, (b) featuring an impartial jury of the people, (c) who come from the community where the crime occurred.”[4] The Founders would not sanction secret criminal proceedings, and there was a deep Anglo-American tradition that trials be open and public spectacles.  The Supreme Court acknowledged as much when it wrote: “by immemorial usage, wherever the common law prevails, all trials are in open court, to which spectators are admitted.”[5] Public trials serve a number of purposes in a number of ways, chief among them an added protection for the innocent.  As Professor Amar has noted, “Witnesses for the prosecution may be less willing to lie or shade the truth with the public looking on; and bystanders with knowledge of the underlying events can bring missing information to the attention of the court and counsel.  A defendant will be convicted only if the people of the community (via the jury) believe the criminal accusation—believe both that he did the acts he is accused of, and that these acts are indeed criminal and worthy of the community’s moral condemnation.”[6]

Finally, the Sixth Amendment’s protections provide the accused with a fair trial, affording him protections against an erroneous guilty verdict.  We see this expressed in the constitutional right to an attorney—that is, the right to defense counsel—and “to be informed of the nature and cause of the accusation,” as well as the right “to be confronted with the witnesses against him,” and the right to obtain “witnesses in his favor.” The process for trying the accused is to be fair and impartial.  If the government can martial its lawyers to prosecute, the accused must be entitled to the same.  If the government can prepare its case for accusation, the accused must know of the charges.  If the government can bring forth witnesses to testify against the defendant, the defendant must be allowed to confront them in open court and before a jury of his peers, and he is entitled to call witnesses on his own behalf.  These procedural protections, too, are part and parcel of a Constitution constructed with deliberate checks and balances designed to preserve both liberty and order in a free society.

The constitutional right to a speedy, public, and fair trial at least helps to ensure—though it cannot guarantee—a just result, and it encourages the public’s continued confidence in a criminal justice system whereby all men are presumed innocent until proven guilty.

Nathaniel Stewart is an attorney in Washington, D.C.

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March 30, 2012

Essay #30


[1] See, Genesis 18:23-32: “Abraham drew near, and said, ‘Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it?[3] … What if ten are found there?’ He [The Lord] said, ‘I will not destroy it for the ten’s sake.’”

[2] Often attributed to William Gladstone.

[3] Akhil Reed Amar, “Forward: Sixth Amendment First Principles,” 84 Georgetown L. J. 64 (1996).

[4] Id.

[5] In re Oliver, 333 U.S. 257 (1948).

[6] Akhil Reed Amar, “Forward: Sixth Amendment First Principles,” 84 Georgetown L. J. 64 (1996).

 

Guest Essayist: Professor Kyle Scott, Professor of American Politics and Constitutional Law, Duke University

http://vimeo.com/39386194

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

With the Constitution in general, and the Bill of Rights in particular, we speak of liberty. There can be no doubt that the Constitution and the Bill of Rights are liberty preserving and any act against liberty taken by the government runs against the true intention of the documents. But in the section of the 6th Amendment that guarantees the right to have the assistance of counsel we see equality creep in to the picture as well. The basic assumption is that if one is to receive a proper hearing one must have someone represent them with legal expertise. A trial by any other means would leave the one unrepresented by legal counsel at a competitive disadvantage. In that case, the matter would be decided not according to the law but by the superiority of the argument and legal expertise. The consequence would be that someone’s liberty could be deprived in a way inconsistent with the law and its application to the facts thus depriving the defendant of due process. This part of the amendment operates under the assumption that to have liberty, each citizen must have equal protection under the law. When the law is applied unfairly, or intentionally advantages some over others, liberty is sacrificed. This has nothing to do with equality of outcome or equality of opportunity as those matters are commonly discussed in contemporary policy debates. Rather, it simply states that the law must be the final determinant of when someone’s liberty may be restricted, not chance or caprice.

The rule of law is commonly understood to be something of an unbiased arbiter. It should not prejudice or hold bias against anyone for reasons unrelated to the relevant facts. The law also makes outcomes predictable. If the law is applied the same in all cases then I should know what to expect in all cases. The law produces a certain amount of certainty when it is known and unbiased. In a nation governed by the rule of law, I know what to expect from the law and from the government. Under a government without a known and settled law, only fear reigns with any predictability. Our futures and our liberty become uncertain and entirely dependent upon the will and whim of those in charge without equal protection under the law. This is why the law must be applied equally for equality under the law implies that those who make and enforce the law are as equally restricted by it as I am.

This holds true for relations between individuals as well. If the person I am dealing with has more liberty under the law than I do then I am at a disadvantage, one imposed by the state. For instance, if the government protects the right of individuals to make private contracts, and will also enforce the contracts if one side breaches it, then I can enter into an agreement knowing that the person will live up to their end of the bargain and if they don’t I have recourse through the government. But, if the government only made it so I was bound by the contract, and not my business associate, then he could exploit this inequality in the law to his advantage. Under such a scenario there would be no reason to have contracts and business relationships would deteriorate. Even in a free market society, where one is allowed to succeed or fail in the market on their own, the government must uphold the rule of law equally so that it is our liberty that decides our success and failure and not the government. If the law is unequally applied then it is not our liberty that is deciding the outcome, but those who make the law determine our fate, thus making it not a free market at all.

And this brings us back to the court room. I am not an attorney, nor did I sleep at a Holiday Inn last night. So if you pitted me against a successful trial lawyer I would get creamed. The only chance I would have of winning is if I had counsel. The right to counsel guaranteed by the 6th Amendment makes sure that I cannot be denied counsel by the other party or by the government. If the government really wanted to send me to jail, regardless of whether I was really guilty, all it would have to do is say I wasn’t allowed to have an attorney represent me. Think of what would happen if the government could use its power to deny me the one thing that would help guarantee a fair trial. The government could have somebody with legal specialization represent its interests but I would not have the same right. This would be unequal protection under the law and my fate would not be determined by the law but by its unequal application. Equality, the kind of which I write, is an essential component to the maintenance of liberty.

Kyle Scott, PhD, teaches American politics and constitutional law at Duke University. He has published three books and dozens of articles on issues ranging from political parties to Plato. His commentary on contemporary politics has appeared in Forbes, Reuters.com, Christian Science Monitor, Foxnews.com, and dozens of local outlets including the Philadelphia Inquirer and Baltimore Sun. He is a frequent contributor to blogcritics.org and maintains his own blog at kyleascott.wordpress.com

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March 29, 2012

Essay #29

Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

http://vimeo.com/39322192

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

“…Right to confront your accuser…”

Perhaps more so than any other provision, the 6th Amendment’s confrontation clause is one of the greatest criminal justice protections of the Constitution.

While many Americans today may not be aware, there was a time when trials didn’t operate with the protections that we rely upon today.  Consider the trial of Sir Walter Raleigh.  Well known for promoting tobacco in England, he was an English aristocrat, writer, poet, soldier, courtier, spy, and explorer.

In 1603, Sir Walter Raleigh was arrested and accused of treason against King James.  Raleigh was allegedly one of the primary conspirators of the so-called “Main Plot,” an effort to end the rule of King James an install his cousin in his place.

The trial was held in the Great Hall of Winchester Castle and the primary evidence relied upon by the crown was the signed confession of Henry Brook, the Baron of Cobham. Throughout the trial, Raleigh requested that Baron Cobham be called in to testify so that he might demonstrate the falsity of the claims, “[Let] my accuser come face to face, and be deposed. Were the case but for a small copyhold, you would have witnesses or good proof to lead the jury to a verdict; and I am here for my life!”

Even though criminal law prevented the use of so called “hearsay” evidence, the crown’s tribunal refused to compel Baron Cobham’s testimony.   Without the ability to publicly force the baron’s testimony or to challenge his veracity, ultimately Raleigh was found guilty and imprisoned in the famous Tower of London.

This experience was a powerful one for the colonists coming to America and would significantly influence the contours of the 6th Amendment.

The modern Supreme Court has made it clear that the “Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is in whatever way, and to whatever extent, the defendant might wish.”

The power of the government to use its resources to accuse, indict and try an individual is considerable.  The framers understood this concern and therefore provided for a means whereby the individual could have the ability to limit the impact of the government’s power in this arena.   The confrontation clause explicitly places a limit by requiring that evidence be presented by a bona fide witness capable of being “cross examined” or challenged on the witness stand.

Thus instead of unknown witnesses or unidentified individuals presenting allegations secretly to convict a person, the confrontation clause requires not only that the government identify those individuals as part of the trial, but to also allow the defendant to rebut or challenge any evidence they attempt to present.

Typically the confrontation rule requires that this occur in open court.  This rule not only applies to witnesses, but also to any written documentation or other types of evidence that the government may wish to present in a trial.  In other words, not only must a homeowner – who was an eyewitness — submit to “cross examination” in a burglary trial, any finger print or blood evidence must also be subject to a challenge by experts in finger print and forensic science.

Normally, evidence is testimonial, that is there is a person making the statement which is considered by the judge or jury and he or she must generally be available for cross examination.  While there may be an exception for a circumstance wherein the witness is unavailable, generally speaking the defendant must have had a prior opportunity for cross-examination of the witness before that testimony is allowed.

Furthermore the confrontation clause is one of the reasons that so-called “hearsay” evidence is limited in court.  Hearsay simply covers the type of information that may prove useful for a trial that is presented by someone other than an eyewitness about information that typically only the eyewitness could recount.  Because of the confrontation clause, even the limited evidence that is allowed to be presented under hearsay exemptions still must be presented by witnesses that can be challenged.  For example, a so-called deathbed confession may be allowed to be entered as evidence.  However the person or document presenting the evidence must be capable of being challenged regarding their motive or accuracy etc.

Without the confrontation clause, a valuable right would not exist that protects individuals against the power of the state. Per the terms of the confrontation clause, Ex Parte or out of court statements are generally not allowed, defendants are guaranteed the right of “personal examination” of the witness, the witness must testify under oath, and the jury must be allowed to observe the demeanor of the witness in making his statement.

Horace Cooper is a senior fellow with the Heartland Institute and is a writer and legal commentator

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March 28, 2012

Essay #28

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/39239148

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

The due process clause of the Fifth Amendment embodies the principle that those vested with the power to govern must not act arbitrarily towards the citizenry. This principle has been a long-established and deeply-held value in Western Civilization, dating back to Stoic (and, subsequently, Judeo-Christian) conceptions of individual dignity. It was incorporated into the canon law of the medieval Catholic Church on the argument that, before banishing Adam and Eve from the Garden of Eden, God gave them a hearing. In Anglo-American constitutional history, it found expression in a provision of the Magna Charta extracted from King John by the nobles that “No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land.” Closer in time to the Constitution, that protection was included in substantially similar language, in the paradigmatic Massachusetts constitution of 1780.

It is self-evident that among the most fundamental protections against governmental caprice is the requirement that, before one is tried and subject to losing life, liberty, or property, one must be notified of the reasons by grand jury indictment or criminal information. Languishing in jail, or living under a cloud of unspecified suspicion, with the overbearing power of the State poised to strike at his life, liberty, or property for a reason not made known, exacts an emotional toll and prevents the targeted individual from preparing his defense. In the more modern context provided by the movie “Animal House,” operating under “double secret probation” puts the recipient at the whim of a vindictive governing bureaucracy.

Then why did the Framers not simply limit themselves to a due process protection, but provide various more precise protections for the accused? Individual clauses in the Fifth (the protection against compelled self-incrimination), Sixth, and Eighth Amendments (no excessive bail) Amendments are specifications of the broader contours of the due process guarantee in the Fifth Amendment. Many of these specifications arose out of the particular experiences of the Americans with British rule. The specific requirement of notification of criminal charges began to appear frequently in early state constitutions, but, unlike other specific protections such as jury trials, had been rare in earlier colonial charters and declarations of privileges and liberties. The Massachusetts constitution of 1780 again provides a model, “No subject shall be held to answer for any crime or offence until the same is plainly, substantially and formally, described to him….” Thus, an indictment must not only be clear, but must “contain the elements of the offense intended to be charged and sufficiently apprise the defendant of what he must be prepared to meet,” as the Supreme Court has opined.

The requirement of notice of charges applies not only to procedural steps that must be taken in regard to the accused. There is also a substantive component that the law under which he is charged be written in a way that furnishes him a reasonably definite standard of guilt. Again, this ties into more general due process notions that a law is unconstitutionally vague if the “average person is left to guess at its meaning,” or if, “based on common understanding and practices, the language of the law reasonably could be construed in several ways, one of which would make the conduct legal.” The old saw that “ignorance of the law is no defense” loses all force if the language of the law is unduly vague.

One historical example of the dangerous malleability of law, especially in the hands of crafty and overbearing prosecutors, was the application of English treason law. Before the Statute of Treason was adopted in 1352, it included various crimes other than warring against the king or aiding his enemies. The contours changed as the king saw fit and extended to ordinary crimes against the “peace of the realm,” such as the murder of the king’s messengers and armed robbery Even after the statute, it included counterfeiting and listed such oddities as “imagining the death of the king, his consort, or his eldest son; violating his consort, or eldest unmarried daughter, or the wife of his eldest son” even before the text discussed levying war against the king. That statute itself was frequently altered and applied in unpredictable ways until a series of reforms by, curiously, the 17th century court of Star Chamber and later Parliaments. Due to this history, as well as the harsh, even brutal, consequences that could result from conviction for treason, colonial charters and state constitutions sought to tighten the definition and reign in the consequences. The Framers of the Constitution followed suit and made treason the only clearly defined crime in the Constitution.

More recently, the Supreme Court has addressed the “notice” issue in striking down vagrancy laws and laws based on certain personal “characteristics.” For example, an ordinance from Jacksonville, Florida, was declared unconstitutional that punished, among others, “persons who use juggling or unlawful games or plays…persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers…persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children” as vagrants. To the Court, this law cast too wide a net and left too much unpredictable discretion to the police to provide a suitable (and constitutional) rule of law. Punishing (defined) aggressive begging is one thing; punishing people “hanging out” is another.

In similar vein, a New Jersey statute that penalized “gangsters” was struck down because it did not provide a usable definition. More recent anti-gang statutes and injunctions have survived constitutional scrutiny because they prohibit defined gang activities, rather than mere status as a gangster. Led by California’s Street Terrorism Enforcement and Prevention Act and the state’s pioneering use of anti-gang injunctions, a majority of states have enacted this type of legislation. The federal government also targets gangs through the Racketeer Influenced and Corrupt Organizations Act (RICO), which punishes gangster-focused conduct. The latter example also shows the dangers of broadly-worded laws, as the statute for a couple of decades was used against targets, such as financial institutions and other businesses, well beyond the intent of the statute’s drafters. One critic claimed that the only groups not targeted under the law were actual racketeers.

The courts recognize, however, that statutes are inherently vague. Language has its limits. Indeed, requiring too much definition would likely make a statute more ambiguous by increasing its complexity and verbosity. Moreover, statutes look forward and are intended to address actions still undone by persons still unknown. There has to be play in the joints. Conspiracy laws, and statutes that prohibit mail and wire fraud, “unreasonable” restraints of trade, or conduct that the “reasonable person knows would annoy another by creating an unreasonable noise” provide sufficiently precise notice. Insufficiency of notice of the charges based on the purported vagueness of a law is almost invariably a futile argument. A defendant whose only hope for avoiding conviction is based on such a tactic is well advised to seek a plea bargain.

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

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March 27, 2012

Essay #27

Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

http://vimeo.com/39171149

Amendment VI:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

The Jury Trial Clause

The right to a trial by jury is essential to the American legal tradition. The Charter of the Virginia Company in 1606 guaranteed the colonists all the traditional rights of Englishmen, including the right to trial by jury. The Declaration of Independence recognized the importance of the right, when it condemned the King “for depriving us in many cases, of the benefit of Trial by Jury.”

When drafting the Constitution, the framers made the jury part of the structure of government: Article III states “the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” In drafting the Bill of Rights, the framers separately protected the right to a trial by an impartial jury in federal criminal cases in the Sixth Amendment.
In the early history of the United States, a jury consisted of 12 individuals who were drawn from the community in which the crime was committed. Though members may have some knowledge of a case before they enter the courtroom, they would consider the evidence presented to reach unanimous verdict. A jury decided both questions of fact and questions of law. Meaning, judges would not tell jury members what the law meant; instead, lawyers argued questions of law before the jury, and the jury decided how the law should be interpreted and applied.

The Sixth Amendment does not mention who can serve on a jury. Initially, federal courts looked to state laws to determine who could serve on a jury. In early American history, all states limited jury service to men, and all states except Vermont required jurors to be property owners or taxpayers. A few states prohibited blacks from serving on juries.

Since the Framing, the interpretation of the Jury Trial Clause has changed in several significant respects. First, juries now decide questions of fact and not question of law. Since the Supreme Court’s ruling in Sparf and Hansen v. United States (1895), judges tell the jury what the law means, and jurors are obliged to follow that definition. Although their power to determine questions of law has been eroded, juries still retain the raw power to check general laws, because a verdict of non-guilty is not reviewable.

Second, the clause now applies to both state and federal proceedings, according to the Supreme Court’s ruling in Duncan v. Louisiana (1968).

Third, the Supreme Court has also altered the rules regarding the size of a jury and the requirement of unanimity. For hundreds of years, juries consisted of 12 individuals. In 1970, though, the Supreme Court ruled that juries could consist of as few as six members. Six-person juries must reach a unanimous decision, and unanimous decisions are required in federal cases. But, non-unanimous verdicts are permissible for 12-person juries in state courts: that means convictions by a vote of 11–1 and 10–2 are possible.

Fourth, the Supreme Court has ruled that both the Sixth Amendment and the Equal Protection Clause of the Fourteenth Amendment prohibit the jury qualifications of the Founding era. Race and sex are no longer grounds for preventing individuals from serving as jury members.

Perhaps the greatest change today is how few criminal cases ever go before the jury. Nearly half of felony convictions are achieved without juries. Guilty pleas and plea bargains account for the vast majority of felony cases. Guilty pleas were rare and discouraged during the Founding era, when jury trials were routine. Though these individuals are sentenced without jury trials, the Supreme Court recently concluded that certain federal sentencing guidelines violate the right to trial by jury.

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

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March 26, 2012

Essay #26

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

http://vimeo.com/39033167

Secret trials are the stuff of nightmares and a hallmark of a totalitarian state. The U.S. Supreme Court has noted that institutions employing secret trials “symbolized a menace to liberty.” In re Oliver, 333 U.S. 257, 269 (1948).

When the Framers of the Sixth Amendment included the requirement of a “public” trial, they were enshrining a longstanding protection of liberty. William Blackstone, a bestseller in the Framing era, noted public trials dated back to the Roman Republic. England had public trials before the Norman Conquest and a “right” to a public trial seems to have existed in the 1600s. The important American treatise writer, Joel Bishop suggested the right in the Sixth Amendment is attributable to “immemorial usage.” Richmond Newspapers v. Virginia, 448 U.S. 555, 565-568 (1980); Harold Shapiro, “Right to a Public Trial” 41 Journal of Criminal Law & Criminology 782 (1951).

The right is borrowed from the common law of England and contrasts with the civil law system (more common in Europe) which allows for private examination of witnesses. The Pennsylvania and North Carolina constitutions of 1776 both provided for open trials. There was little discussion of the provision in the debates over the Sixth Amendment. In re Oliver, 333 U.S. 257, 269 (1948); Max Radin, “The Right to a Public Trial” 6 Temple Law Quarterly 381 (1931).

For the individual being tried a public trial provides crucial protections. Quoting In re Oliver again: “the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.” Page 270. Having proceedings out in the open provides “assurance that the proceedings were conducted fairly to all concerned” and discouraged “decisions based on secret bias of partiality.” Richmond Newspapers v, Virginia, 448 U.S. 555, 569 (1980).

For society at large public trials also serve valuable purposes. They discourage lying by witnesses (since someone who knows the truth could be in the courtroom), discourage bad behavior by participants, and provide an education on the legal system.

Put more simply, everyone (judge, attorney and witnesses alike), is likely to be on their best behavior when they know they are being observed. This is why parents whisper (or hiss) when they threaten their children at the grocery store.

This is a serious matter, though. In 1948, the Supreme Court could note: “we have been unable to find a single instance of a criminal trial conducted in camera [meaning in the judge’s chambers and not in open court] in any federal, state, or municipal court during the history of this country.” In re Oliver, page 266. That same year, an American citizen was arrested in Czechoslovakia and convicted of espionage in a secret trial ultimately escaping in 1952. Ken Lewis, “Leaving an Imprint” St. Augustine Record, September 26, 2003 at http://staugustine.com/stories/092603/new_1830364.shtml.

How many Americans have been spared a similar fate because of the wisdom of the Framers? Yet another debt of gratitude we owe them.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

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March 23, 2012

Essay #25

Guest Essayist: Cynthia Dunbar, attorney, author, speaker and Assistant Professor of Law at Liberty University

http://vimeo.com/38961672

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

The Sixth Amendment of the Constitution affords citizens of the United States the right to a speedy and public trial. It is important to note that this right, as every single right within the Bill of Rights, is not a right created by the civil government.  Rather, they are rights that are deemed to already exist preserved from governmental deprivation.  The belief in inherent rights possessed by mankind is the ideal behind the Magna Carta.

Chapter 40 of the Magna Carta of 1215 states  “We…will not deny or defer to any man either justice or right.” This shows that the ultimate concern was that no man be deprived of justice.  The inherent right all men possess to justice is at the heart of being afforded a speedy trial. It was thought that a miscarriage of justice could more readily occur in a system where men could be incarcerated for lengthy periods of time without the promise of a trial to present evidence of their potential innocence.  Without the promise of a speedy trial, men could ultimately be imprisoned for an undefined sentence of time prior to ever having been lawfully determined to be guilty.   The protections of the 6th Amendment have been said to be “an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383 U.S. 116, 120 (1966)

While it is clear that the right to a speedy trial avoids lengthy periods of incarceration prior to determination of guilt, it is also clear that it serves other legitimate goals to ensure justice.  First, it minimizes the threat that mere public accusation could create in its absence.  Because one is promised a speedy trial, mere accusations do not hold the same threat since those accusations would be weighed upon a technical evidentiary standard at trial. Additionally, the preservation of the evidence itself can be seen.  The delay of a trial can easily cause spoilage of evidence and diminished memories of witnesses who could be called to testify.  Inaccurate or fuzzy memories serve to increase the likelihood of a miscarriage of justice.  Ensuring a speedy trial is a necessary tool in ensuring that accurate testimony and evidence are presented at trial.

So we know we are afforded the right to a speedy trial and we know why we are afforded this right.  But now the question is, “how to determine when and if this right has been abridged?” The courts have determined that this right becomes activated once a criminal prosecution begins.  This right then is afforded to the accused once the prosecution of a crime has begun. It has also been determined that the right does not require a formal indictment or charge; it begins once restraints are imposed by arrest. United States v. Marion, 404 U.S. 307, 313, 320, 322 (1971)

This inherent or unalienable right to justice which all men possess served to give direction to our Founding Fathers.  They saw that in order to practically achieve the greatest protection of this right, citizens must be assured the right to a speedy trial.  The only hope that a falsely accused innocent man has of regaining his liberty is the preservation of accurate testimony and evidence and a prompt opportunity to confirm his innocence.  This pursuit of justice is what lies at the heart of the constitutional right to a speedy trial.

Cynthia Noland Dunbar is an attorney, author and public speaker and is frequently seen on Fox & Friends.  A former elected member of the Texas State Board of Education, she currently is an Assistant Professor of Law at Liberty University School of Law and teaches on our Constitutional and common law heritage.

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March 22, 2012 

Essay #24 

Guest Essayist: Michelle Griffes, Manager of Programs and Curriculum Development at the Bill of Rights Institute

 

Amendment V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Movies and television shows have popularized Fifth Amendment protections like “grand jury indictment,” “double jeopardy,” “pleading the Fifth,” and “due process,” but do Americans truly know what these clauses protect? Do Americans understand what their lives would be like without the protections of the Fifth Amendment? In order to explain the Fifth Amendment in its entirety, we will explore each of the five clauses of the Fifth Amendment, the basic history of the clause, and the protections provided by the clause.

The first clause in the Fifth Amendment reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” According to the Handbook for Federal Grand Jurors, a grand jury hears evidence against an accused person from the United States Attorney or Assistant United States Attorney in order to determine whether he or she should be brought to trial. The U.S. Attorney then has to approve the indictment as a check on the grand jury. [1] Grand juries were first recognized in the Magna Carta in 1215. As British subjects moved to North America,, they brought English common law practices, including grand juries, with them. Eventually, indictments for capital crimes by grand juries were ensrhined in the Bill of Rights.

The second clause in the Fifth Amendment states: “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This clause is commonly known as “double jeopardy” and prevents a defendant from being charged for the same crime after acquittal, conviction, certain mistrials, or multiple punishments. The portion of the clause that refers to “life and limb” is derived from the possibility of capital punishment. [2] Protections against double jeopardy can be found as far back as the Old Testament and ancient Roman law. [3] Double jeopardy can be complicated by the differences between criminal and civil cases and state and federal cases. O.J. Simpson, for example, was acquitted in a criminal murder case, but he was found guilty in a civil case. Hate crime statues also challenge double jeopardy protections, with some arguing that trying defendants for a hate crime after acquittal in a criminal case constitutes double jeopardy.

The Fifth Amendment also promises: “nor shall [any person] be compelled in any criminal case to be a witness against himself.” This is the famed “pleading the Fifth” assertion we often hear in American vernacular. The clause protects individuals from answering questions or making statements that might be used as evidence against them. [4] This protection was expanded outside the courtroom with the United States Supreme Court case Miranda v. Arizona, 1966. The Court ruled that the self-incrimination clause also applied in police interrogation. [5]

“[No person shall] be deprived of life, liberty, or property, without due process of law” is the fourth clause of the Fifth Amendment. Due process was first protected under the Magna Carta in which King John promised that he would act in accordance with the law through procedures. The U.S. government provided for due process rights in the Fourth Amendment and in the Equal Protection clause of the Fourteenth Amendment. In order to ensure justice, established procedures must be followed before depriving people of life, liberty, or property. These procedures include the rights to a speedy jury trial, an impartial jury, and to defend oneself. [6]

Property is first mentioned as part of the due process clause of the Fifth Amendment, but private property is mentioned again in the final clause. The clause states, “nor shall private property be taken for public use, without just compensation.” If the state or federal government decides to take private property for public use, they must compensate the owners for that use. This is known as the “takings clause” or “eminent domain.”[7] Supreme Court has held that just compensation is measured by the current market value of the property. [8]

While Americans may hear about the Fifth Amendment protections regularly, they may not really understand the specific rights enumerated in each clause. The Fifth Amendment provides for grand jury indictments in capital crimes, protections against double jeopardy and self-incrimination, and protections of due process rights and just compensation for public use of private property. Each of these rights has a history in English common law or as far back as the Roman Empire, and the Founding Fathers believed that they needed to be explicitly provided for in our own government documents to ensure their protection.
1. Administrative Office of the United States Courts, Washington, D.C. “Handbook for Federal Grand Jurors.”

October, 2007. http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/FederalCourts/Jury/grandhandbook2007.pdf
2. Find Law. “Cases and Codes, U.S. Constitution: Fifth Amendment.” http://caselaw.lp.findlaw.com/data/constitution/amendment05/02.html
3. David S. Rudstein. “A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy.” 14 Wm. & Mary Bill of Rts. J. 193 (2005), http://scholarship.law.wm.edu/wmborj/vol14/iss1/8
4. Find Law. “Fifth Amendment Right Against Self-Incrimination.” http://criminal.findlaw.com/criminal-rights/fifth-amendment-right-against-self-incrimination.html
5. The Oyez Project. “Miranda v. Arizona, 1966” http://www.oyez.org/cases/1960-1969/1965/1965_759
6. Cornell University School of Law. “Due Process.” http://www.law.cornell.edu/wex/due_process
7. Missouri Bar Center. “What is Eminent Domain?” http://library.findlaw.com/1999/May/25/130971.html
8. The Oyez Project. “United States v. 50 Acres of Land, 1984.” http://www.oyez.org/cases/1980-1989/1984/1984_83_1170

Michelle Griffes is the Manager of Programs and Curriculum Development at the Bill of Rights Institute, an Arlington, Virginia-based educational non-profit. Michelle obtained degrees from Michigan State University in Public Policy and Olivet College in Elementary and Secondary Education. The Bill of Rights Institute teaches students about the Founding Documents through teacher professional development seminars, curriculum production, and student programs including the annual Being An American Essay Contest.

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March 21, 2012

Essay #23

Guest Essayist: Gordon S. Jones, Utah Valley University

http://vimeo.com/38825685

Amendment V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

“…nor shall private property be taken for public use, without just compensation.”

The power to take private property is not one of the “enumerated” powers set forth in the Constitution. But as a practical matter, one of the things that makes a government a government appears to be the power to take property. That right is called “condemnation,” or the power of “eminent domain.”

The theory is that without government, any private property is subject to confiscation by anybody stronger. Governments (and especially ours) exist to protect property from such arbitrary takings. The Declaration of Independence identifies “life, liberty, and the pursuit of happiness” as among the “inalienable rights,” but the Founding Fathers, relying on English theorist John Locke, understood “happiness” to include the right to private property. Early uses of this phrase actually say “life, liberty, and property.” Alexander Hamilton described “the security of property” as one of the primary purposes of government.

With the “takings” clause of the Fifth Amendment, Founding Father James Madison was only trying to provide property owners with at least the assurance that proper procedures would have to be observed in takings, and that owners would at least get something for their loss.

There are a number of concepts that need to be explored in understanding the Takings Clause: what is a “taking,” what is “public use,” and what is “just compensation”?

If the government takes your farm and builds a military base on it – occupies it – that is obviously a “taking.” But what if you own property on top of a mountain, and you want to build five houses on it that you can sell for $1 million each. Government tells you that you can only build one house there, and that house will sell for only $1.5 million. Has the government “taken” $3.5 million from you?

If a Forest Ranger discovers a spotted owl nesting in your tree farm, you may not be allowed to cut the trees. Has government “taken” the value of the timber?

These are the kinds of questions governments and courts ask in deciding whether property has been “taken.” It would be nice to think that, after more than 200 years, we had clear answers to these and similar questions, but the fact is, we don’t. One Supreme Court Justice said that government could impair the value of property by regulation without paying compensation as long as it didn’t go “too far.” Not exactly the clearest standard.

What about “public use”?

If your county government takes your property and builds an airport on it (or a school or hospital), most would agree that the property had been taken for a “public use.” On the other hand, what if the property was taken and sold to a private developer who built an office building on it? Would that be a “public” use? Probably not, but if the property were in a run-down (“blighted”) area of town, and the development eliminated a row of crack houses and re-vitalized the economics and livability of the neighborhood, the courts might find such a taking justified (and therefore constitutional).

Again, you might think that there is a lot of “wiggle room” in these judgments, and you would be right. Some years ago, the State of Hawaii forced private landowners to sell their land to tenants. The Supreme Court upheld the forced sales as being for a “public use.” We might think such a judgment obviously wrong, but we might change our mind if we knew that in Hawaii at that time 72 owners had inherited from ancient times more than 90 percent of the private land in the islands.

A more questionable case occurred in 2005, when the city of New London, Connecticut took several private homes and sold them to a private developer for an office building. There was no question of “blight” in this case, but the city argued that it would get more tax revenue from the office building than it was getting from the private homes, so that the “public” would benefit. This case (Kelo vs. New London) generated a firestorm of opposition, moving many states to strengthen the safeguards on their eminent domain procedures. Critics of the Kelo decision argue that it has changed the words “public use” to the much looser “public purpose.”

Finally, what is “just compensation”? If the city wants to build a road across my property and offers me $1 million for it, I might consider that “just,” and be happy to take it. On the other hand, if my grandfather is buried there, no amount of money could tempt me to sell willingly.

Governments have set up procedures for determining what the “fair market value” is for any property subject to condemnation. These involve the use of real estate appraisers, economists, and planning forecasters. They also typically involve extensive negotiations, which can be expensive for a private landowner – so expensive that the landowner eventually gives up and gives in to the government, which has all the resources of the taxpayer to call on to finance its battle.

The right to own property is part of what the Founding Fathers called the “natural law,” one of the “inalienable rights” mentioned in the Declaration of Independence. The Constitution was written for the purpose of “ensuring” those rights, so we should be very suspicious of governmental power that infringes the enjoyment of property rights. But it is obvious that completely unfettered use of property by one person could infringe the rights of other property owners. At the present time, the system we use to reconcile conflicting – or potentially conflicting – rights is the power of eminent domain, hedged up, as it must always be, with the procedural safeguards guaranteed by the Fifth Amendment: that the “taking” be for a “public use,” and that it be accomplished by “just compensation.”

Gordon Jones, a long-time policy analyst in Washington, studied constitutional Law with Robert Horn at Stanford University, has his Master of Philosophy in Political Science from George Washington University, and teaches Law and Politics at Utah Valley University.

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March 20, 2012

Essay #22

Guest Essayist: J. Eric Wise, partner at Gibson, Dunn & Crutcher LLP law firm

http://vimeo.com/38759291

In that funny movie, Monty Python and the Holy Grail, a woman is tried for the crime of being a witch by placing her on a scale to see if she weighs more than a duck.  Laugh now.  In 9th Century England, procedure was scarcely better.  Commonplace were absurdities such as the “ordeal,” where guilt or innocence might be determined by burning the accused with boiling water or a hot iron, trial by battle – including the use of retained champions – and “compurgation,” the testing of witnesses by a ritualistic chain of oaths which if completed proved innocence or if broken proved guilt.

In 1215 English nobles forced King John to place his seal on the Magna Carta at Runnymede.  That document stated in clause 39 “No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed—nor will we go upon or send upon him—save by the lawful judgment of his peers or by the law of the land.”  It was not until 1354 that clause 39 was re-codified, including “due process of law” in lieu of  “save by the lawful judgment of his peers or by the law of the land.”

The Constitution originally had no bill of rights.  Federalists argued a bill of rights was more appropriate to an all-powerful monarch, subject only to enumerated rights, than to a limited government, having only the powers vested in it by the people.  Yet, to co-opt the opposition, James Madison introduced in the First Congress a bill of rights.  Embedded in the Fifth Amendment are the words “nor shall any person be deprived of life, liberty or property without due process of law.”

“No, no!” said the Queen in Alice in Wonderland.  “Sentence first — verdict afterwards.”  Due process is in the least a guaranty of procedural fairness. As such, due process includes, inter alia, prohibitions against vagueness, the right to notice and a meaningful hearing at a meaningful time, and decisions supported by evidence with law and findings of fact explained.  Exigencies and circumstances affect the extent of procedural requirements through balancing tests.  In circumstances requiring emergency injunctive relief, minimal notice, if any, is required.  Due process is not the same as judicial process.  Citizen affiliates of Al Qaeda beware, the executive may kill you without a trial.

Substantive due process is perhaps of a more controversial sort.  Under the doctrine of substantive due process, the clause implies unwritten rights denying, in certain circumstances, the power to enact legislation – or otherwise act – to deprive life, liberty or property even with fair procedural application.  Legislation that the judiciary finds inherently arbitrary may be voided on substantive due process grounds.

Readers of the Declaration of Independence know that super-legal rights do self-evidently exist and are the source of the authority of the people to govern themselves, but it is hardly a straight path from A to B that it is the role of the judiciary to give natural rights expression as positive law.  Further, substantive due process proponents nowadays do not hang their hat on a natural rights peg.  Compare the language of Justice Samuel Case in Calder v. Bull (1798) regarding the “principles of the social compact” to that of the “penumbral rights” of Griswold v. Connecticut (1965).  In any event, both supporters and detractors alike would be disingenuous to deny that this second sort of “due process” vests somewhat breathtaking power in the judiciary, and raises the critique that by substantive due process legislation may be made without legislative process.

It is important to remember that the due process clause of the Fifth Amendment restricts only federal power.  Consequently, since the ratification of the Reconstruction Amendments, applications of substantive due process under the Fifth Amendment have been limited to hard to scratch places where the due process clause of the Fourteenth Amendment does not reach, such as the territories and the District of Columbia.  It would not be fair, however, to deny substantive due process under the Fifth Amendment some negative attention it deserves.  Perhaps the first Supreme Court case to dive deeply into the waters of substantive due process was Dred Scott v. Sandford (1857), in which, through layered and abominable errors of reasoning, Justice Taney found in the due process clause of the Fifth Amendment a right to property in other human beings that barred Congress from prohibiting slavery in the territories.

March 19, 2012 

Essay #21 

J. Eric Wise is a partner at the law firm Gibson, Dunn & Crutcher LLP, practicing restructuring and finance.

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Guest Essayist: Professor Kyle Scott, Professor of American Politics and Constitutional Law, Duke University

http://vimeo.com/38615563

Amendment V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The 5th Amendment contains numerous, seemingly unconnected, components. However, there is a common theme. The common theme that runs throughout the amendment is liberty; it connects each of the components. The manner in which the amendment is constructed reflects the idea that the burden of proof falls on the government. In order to take someone’s life, liberty or property the government must adhere to a strict set of standards in trying to prove guilt or cause. Perhaps the most important of these is the protection against self-incrimination. The 5th Amendment states that an individual cannot be forced to testify against himself. The provision became well-known in popular culture when accused mobsters would commonly take the fifth when they were put on trial. But the provision has been around since at least the sixteenth century when torture and forced testimony was common practice.

In order to get a confession, or to get someone to testify against himself, officers of the law would torture someone or hold their family or property in custody until they signed a confession or took a pledge that confirmed their guilt. Of course, banning such practices was not enough as the practices were done in secret when they were outlawed, or outsourced to unofficial officers of the state where judges or barristers could plausibly deny the existence of such practices. The only way to make sure such reprehensible practices did not occur was to exempt people from being a witness against themselves. If a person could not be asked to witness against himself it wouldn’t do much good to torture him.

The provision increases the burden of proof on the government in criminal cases. A person cannot, during trial, be asked if they committed a crime. The government must prove the case against them. This may seem onerous and unnecessary but we should be quick to remember that the government can be as prone to misuses of power as individuals. This is but one additional check to make sure the government does not use its monopoly on force outside the bounds of law in a way that threatens the life, liberty, or property of individuals. Such a provision also bestows an increased level of legitimacy over judicial proceedings.

This provision, and perhaps this amendment moreso than any other, shows at what great lengths the First Congress went through to protect individual liberty. This provision shows that the government exists for the preservation of individual liberty, that individual liberty precedes government; and thus by extension, the primary purpose of government is to protect us, not to enhance itself or extend authority over us beyond what we grant it.

The mark of a good government, and of a people truly committed to the idea of liberty, is the degree to which they abide by procedures that make the deprivation of life, liberty, or property difficult. This must be true when we sympathize with the accused just as much as when find the accused to hold positions and values contrary to our own.

Kyle Scott, PhD, teaches American politics and constitutional law at Duke University. He has published three books and dozens of articles on issues ranging from political parties to Plato. His commentary on contemporary politics has appeared in Forbes, Reuters.com, Christian Science Monitor, Foxnews.com, Washington Times and dozens of local outlets including the Philadelphia Inquirer and Baltimore Sun.

March 16, 2012 

Essay #20 

Guest Essayist: Guest Essayist: Charles E. Rice, Professor Emeritus of Law at the University of Notre Dame

Amendment V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

DOUBLE JEOPARDY

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.–  U.S. Constitution, Fifth Amendment.

What are the purpose and origin of that constitutional protection?   “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense…. The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity… as well as enhancing the possibility that even though innocent he may be found guilty.  In accordance with this philosophy… a verdict of acquittal is final, ending a defendant’s jeopardy, and even when ‘not followed by any judgment, is a bar to a subsequent prosecution for the same offence.’ … Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous.” Green v. U.S., 355 U.S. 184, 188 (1959).  (citations omitted.)

The importance of the double jeopardy protection is obvious.  But its applications raise technical questions.  For example, as the Supreme Court of the United States ruled, “[I]t is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge…. A defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again…. This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict.  At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where ‘unforeseeable circumstances… arise during [the first] trial making its completion impossible, such as the failure of a jury to agree on a verdict.’…. [A] defendant can be tried a second time for an offense when his prior conviction for that same offense had been set aside on appeal.”   Green v. U.S., 355 U.S. 184, 187-88 (1959) (citations omitted).

The United States Constitution created a system of dual sovereignties, federal and state.  The protections of the Bill of Rights, including the protection against double jeopardy, were originally intended to bind only the federal government, the government of the United States.  Barron v. Baltimore, 32 U.S. 243 (1833).  For protection of their liberties against infringement by state governments, the people relied on guarantees in their state constitutions.  Thus the Supreme Court, in Palko v. Conn., 302 U.S. 319 (1937), declined to apply the double jeopardy protection strictly against the states.  Three decades later, however, the Supreme Court reversed that restriction on account of what it described as the “fundamental” character of that protection: “Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ … the same constitutional standards apply against both the State and Federal Governments…. The fundamental nature of the guarantee against double jeopardy can hardly be doubted.  Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation’s independence….As with many other elements of the common law, it was carried into the jurisprudence of this Country through the medium of Blackstone, who codified the doctrine in his Commentaries…. Today, every State incorporates some form of the prohibition in its constitution or common law.”  Benton v. MD, 395 U.S. 784, 795 (1969) (citations omitted).”

The protection against double jeopardy is limited by the federal character of our constitutional system.  “[A]n act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each…. [T]he double jeopardy… forbidden [by the Fifth Amendment] is a second prosecution under authority of the Federal Government after a first trial for the same offense under the same authority.  Here the same act was an offense against the State of Washington, because a violation of its law, and also an offense against the United States under the National Prohibition Act. The defendants thus committed two different offenses by the same act, and a conviction by a court of Washington of the offense against that State is not a conviction of the different offense against the United States and so is not double jeopardy.”  U.S. v. Lanza, 260 U.S. 377, 382 (1922) (citations omitted).

A criminal assault under state law may also be a separate civil rights violation under federal law if the prerequisites of racial or other elements are present.  When, however, two different units of government are subject to the same sovereign, the double jeopardy clause does bar separate prosecutions by them for the same offense.  Waller v. Florida, 397 U.S. 387 (1970) (trial by a municipal court bars a trial for the same offense by a state court.)  The dual sovereignty doctrine has also been applied to permit successive prosecutions by two states for the same conduct.  Heath v. Alabama, 474 U.S. 82 (1985) (where defendant crossed the state line in committing a kidnap murder, he could be prosecuted for murder in both states.)

The clause generally has no application in noncriminal proceedings.  Helvering v. Mitchell, 303 U.S. 391 (1938).  But the protection against double jeopardy can apply to the imposition of sanctions that are civil in form but that constitute “punishment” in their application.  Breed v. Jones, 421 U.S. 519 (1975) (juvenile court proceedings); U.S. v. Halper 490 U.S. 435 (1989) (imposition of a civil penalty under the False Claims Act triggers protection against double jeopardy if the penalty is very disproportionate to compensating the government for its loss and is obviously intended for retributive or deterrent purposes).  Because a main purpose of the double jeopardy clause is the protection against the burden of multiple trials, a defendant who raises and loses a double jeopardy claim during pretrial or trial may immediately appeal the ruling, an exception to the general rule prohibiting appeals from nonfinal orders.  Abney v. U.S., 431 US 651 (1977)

In summary, the double jeopardy protection is truly fundamental.  That basic character should not be obscured by the necessity of making technical distinctions in its application.  Those distinctions, based on procedural or federalist factors, attest instead to the necessity of preserving the fundamental character of that protection not merely in general but in all of its applications.

Charles E. Rice is Professor Emeritus at the University of Notre Dame law School. His areas of specialization are constitutional law and jurisprudence. He currently teaches “Law and Morality” at Notre Dame.

March 15, 2012 

Essay #19 

 

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/38540555

Amendment V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The 1999 movie Double Jeopardy, starring Ashley Judd and Tommie Lee Jones, focused on a wife who was wrongfully convicted of murdering her husband who had staged his own killing. One theme suggested by the title and by some scenes of prison lawyering is that, having once been convicted of murder, the wife could not be tried again if she now murdered her husband. Hardly.

The protection against double jeopardy is deemed a fundamental human right with a tradition well-entrenched in Western Civilization going back at least to ancient Roman law. The doctrine was part of the English common law long before the Constitution, although, curiously, express double jeopardy protections were not well-represented in the early state constitutions or in the proposals for amendments submitted by the state conventions that ratified the Constitution. Incidentally, the phrase “life or limb” today is read as “life or [physical] liberty,” since drawing-and-quartering and other punishments that produce corporal maiming have gone out of style and would likely constitute “cruel and unusual punishment” in violation of the 8th Amendment.

In Green v. U.S. in 1957, the Supreme Court justified the doctrine as reflecting

“the underlying idea…that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

On that last point, if the state gets numerous turns at bat, it only needs to be successful once, which produces significant incentive to try repeatedly. At the very least, such tactics will cause more defendants, emotionally and financially exhausted and faced with the deeper resources of taxpayer-funded prosecutors, to enter factually dubious guilty pleas.

The clause raises several questions. First, when does jeopardy “attach”? Second, what exactly can the government not do? Third, what exceptions are there?

Jeopardy attaches when a jury is empanelled and sworn. If the trial is to a judge only, it attaches when the first witness is sworn. If there is a guilty plea, it attaches when the court accepts the plea. An acquittal by the judge or jury bars the government from appeal because a retrial for that offense would violate the double jeopardy rule.

Notice that the government cannot retry the offender for the same offense. What if a defendant is acquitted of robbery, which combines larceny (taking and carrying away another’s personal property without consent and with the intent to deprive him of the property permanently) and assault (intentionally creating a reasonable apprehension of immediate bodily injury)? Can the prosecutor now seek to try the defendant for larceny and/or assault arising out of the same criminal act? The common sense reaction is “no.” That is also the legal stance, because two crimes constitute the “same offense,” unless each of them has at least one additional element that is different from the other. Here, while robbery has a different element than either larceny or assault (since it is a combination of the two), neither larceny nor assault has any additional element from robbery. A prosecutor who has failed in a prior trial cannot proceed against the same defendant for a “lesser-and-included” offense.

Likewise, a prosecutor who, for example, successfully prosecuted a defendant for larceny and has that conviction under his belt subsequently cannot roll the dice again and seek to try that defendant for the greater crime of robbery out of the same transaction. The lone exception to that rule is that a prosecution for battery (unlawfully using force against another that causes bodily injury) does not bar a subsequent trial for murder if the victim eventually succumbs to his wounds from the attack.

While the rule gives defendants some basic and significant protections, it is also riddled with exceptions and qualifications. In that vein, a hung jury is no bar to retrial. Neither are certain motions for mistrial by the defendant where the mistrial is not caused by prosecutorial misconduct. For example, conditions arise that make a continuing fair trial impossible in that location. There is also generally no violation of double jeopardy for a retrial if the defendant appealed and was successful in overturning the earlier verdict, or if the prosecution successfully appealed a trial court dismissal of the case when there was no acquittal but the trial court based its decision on a legal motion.

Significantly, double jeopardy does not apply to non-criminal proceedings. A public official who is impeached and removed from office for a crime can also be prosecuted for that act under the criminal law. In similar vein, a defendant who is convicted or acquitted in a criminal trial can be sued by the victim for a civil wrong. A notorious example of that is the former football star and advertising pitchman O.J. Simpson. Despite his acquittal of murder charges for the killing of his estranged wife and another victim, he was subsequently found liable for civil damages for “wrongful death.”

Returning to our movie, yet another exception shows the lack of reliability of jailhouse lawyering (or of Hollywood screenwriters). The double jeopardy clause does not apply to different sovereigns. Conviction or acquittal under the laws of one sovereign does not bar a different sovereign from prosecuting the defendant under its law for the same charge arising out of the same conduct if the conduct affected that sovereign. Although they usually avoid duplication, the state of California could prosecute a drug dealer for violation of its drug laws and then turn the perpetrator over to the federal government for prosecution under federal drug laws. A version of that was the 1993 federal prosecution of four Los Angeles police officers for violation of federal civil rights laws arising out of the use of excessive force in arresting Rodney King in 1991. The officers had mostly been acquitted in a 1992 state prosecution arising out of the same incident.

The legal assumptions of the movie are flawed. Being wrongfully convicted of murder may entitle the defendant to civil damages from the government. But it does not create a dispensation from prosecution for a subsequent murder. The Constitution has no “get-out-of-jail-free-for-murder” coupons to be redeemed as the occasion demands. More pertinent, had Louisiana prosecuted the movie’s protagonist for the murder of her husband, the prior prosecution by the state of Washington would not have placed her twice in jeopardy of life or limb for the same offense.

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

March 15, 2012 

Essay #19 

Guest Essayist: Allison R. Hayward, Vice President of Policy at the Center for Competitive Politics

http://vimeo.com/38478927

The Right to a Grand Jury

The grand jury occupies a unique place in our justice system.  It does not prosecute, but the power of a federal prosecutor depends on the grand jury.  It does not judge, but it can expose or shield defendants from judgment.  It can protect citizens against baseless prosecution, but the reasons for its decisions are shrouded in secrecy.  The grand jury originated in medieval and monarchist England, remained important enough at the Founding for the Framers to enshrine it in the Fifth Amendment, but today grand juries are only employed in the United States.

A grand jury consists of 16 to 23 members.  The United States attorney (the prosecutor in federal criminal cases) presents evidence to the grand jury for them to determine whether there is “probable cause” to believe that an individual has committed a felony and should be put on trial. If the grand jury decides there is enough evidence, it will issue an indictment against the defendant.

The grand jury conducts its work in secret. Jurors cannot be required to explain to anyone, even the courts, why the proceeded in a case. Ideally, secrecy protects against a defendant fleeing the jurisdiction.  It allows for free deliberations without threat or pressure from outside.   It also discourages witness tampering.   And finally, if the jury finds probable cause is lacking, the accused individual suffers no loss of reputation.

Grand juries possess broad powers of inquiry. They have subpoena power, and can compel testimony by providing immunity.  At the same time, their proceedings are not adversarial.  The jury is not assessing the guilt or innocence of any person.

As the Supreme Court stated, ”it is axiomatic that the grand jury sits … to assess whether there is adequate basis for bringing a criminal charge.” U.S. v. Williams, 504 U.S. at 51.

The insular quality to grand juries has provoked criticism.  Because the prosecutor is the one official present during deliberations, critics complain that grand juries can become a rubber stamp — aiding unscrupulous or ambitious prosecutors, who may be pursuing interests hostile to the administration of justice.  While the grand jury is enshrined in the Constitution, Congress has the power to amend the rules by which juries are run.  For instance, Congress could require prosecutors to present any evidence exonerating a defendant, give a defendant the right to appear before the jury, or guarantee a counsel’s assistance for any defendant or target of an investigation.

Allison Hayward graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis.  She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit.  Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics.  She is an active member of the California and Washington, D.C. bars, and she is a certified FINRA arbitrator.

March 14, 2012 

Essay #18 

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

http://vimeo.com/38416219

Amendment IV:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularity describing the place to be searched, and the persons or things to be seized.

Amendment IV: Particularity of Warrants

Limitation of the power of the government is not one of many possible approaches to governing under the U.S. Constitution. It is the very structure of the Constitution itself. Our Constitution is primarily a limitation on what the government it charters can do. The first ten amendments constituting the Bill of Rights, in particular, are not affirmative grants of privileges from a beneficent state to its subjects but a restrain on government in the interest of protecting the preexisting rights of citizens,

The structure of the Fourth Amendment, for instance, makes clear that the Framers understood the rights it protected from the government to be existing rights. This is consistent with the Framers’ entire approach to constitutional government, an approach informed by careful study of history and, specifically, their own experience in self-government and its opposites. Much of that experience, of course, was gained as subjects of the British Crown and in the effort to respond to abuses of English power in the colonies, ultimately leading to the decision to seek independence.

The decision to include in the first set of amendments to the U.S. Constitution, a requirement of particularized warrants is a key example.

The primary relevant experience of the Framers on this matter came from the general warrants, called writs of assistance, used by the British to conduct wide-ranging searches for contraband in the colonies. A writ of assistance is court permission for government officials to conduct a generalized search, for instance for goods on which customs fees have not been paid. They contrasted with a more specific search warrant that would specify who, what and where to be searched in some detail. The practical effect of the difference should be obvious. If a government official is allowed by court to go into all the homes on a block looking for anything on which taxes have not been paid, you have a significant intrusion. If the court instead says that these officials can go to 555 Whatever Lane and look for money that has been stolen from the downtown bank, the intrusion is dramatically less.

The use of writs of assistance in the colonies provoked understandable protect. John Dickinson, in his 1767 Letters from a Farmer in Pennsylvania, noted the act of Parliament allowing for these writs empowered customs officers to “to enter into any HOUSE, warehouse, shop, cellar, or other place, in the British colonies or plantations in America, to search for or seize prohibited or unaccustomed goods [meaning goods on which no customs had been paid].” He pointed out that while those kinds of writs had also been issued in England, “the greatest asserters of the rights of Englishmen have always strenuously contended, that such a power was dangerous to freedom, and expressly contrary to the common law, which ever regarded a man’s house as his castle, or a place of perfect security.” Thus, Dickinson argued: “If such power was in the least degree dangerous there, it must be utterly destructive to liberty here.”

The experience of the colonists with these practices bore fruit in the newly independent States. The 1776 Virginia Declaration of Rights, the Maryland Constitution of the same year and John Adams’ 1780 Constitution for Massachusetts all required that warrants for searches and seizures be specific in describing the place to be searched and the subjects of the search or seizure.

These precedents, of course, were adopted in the drafting of the Fourth Amendment, the language of which clearly prohibits the broad-wide-ranging searches so abhorrent to the colonists. It does so by allowing only search warrants “particularly describing the place to be searched, and the persons or things to be seized.” This is the particularity clause.

A Connecticut case from the early Nineteenth Century exemplified the type of warrants the Fourth Amendment was created to prevent: “it is not only a warrant to search for stolen goods supposed to be concealed in a particular place, but it is a warrant to search all suspected places, stores, shops and barns in Wilton. Where those suspected places were in Wilton is not pointed out, or by whom suspected: so that all the dwelling-houses and out-houses within the town of Wilton were by this warrant made liable to search.” (Grumon v. Raymond, 1 Conn. 40, 1814.

Today we would be shocked if a court were to authorize police to search an entire town for stolen goods. Yet, these kinds of warrants were commonly allowed in England prior to American Independence and seem to have been issued even into the 1800s here. What happened to change the legal culture?

Part of the answer is the Framers’ ability to apply what they had learned from experience. Americans had experienced the oppression of broad, intrusive searches and this led them to reject these as a proper instrument of government. They then ensured the lessons learned were reflected in the law through the Fourth Amendment.

The Framers wrought well and we are the inheritors of their wisdom in limiting the power of government. The English may have noted that the home is a case but the Fourth Amendment’s particularity requirement helped to give that concept the binding force it needed to be a reality.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

March 13, 2012 

Essay #17 

Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

http://vimeo.com/38333110

“…..no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…”

Americans today take great pride in the accomplishments and brilliance of the drafters of the Constitution and the Bill of Rights.  One of the things that this essay will demonstrate is that quite often the protections that we take for granted came about as a result of the prudence and wisdom of the founders and in particular their specific response to the challenges they were exposed to or aware of.   Many Americans may not appreciate that this provision isn’t just pivotal, it is in some sense central to America’s claim to independence.

The 2nd clause of the 4th Amendment makes clear, magistrates and others allowed to issue warrants must not issue “general” warrants, but instead when court orders are issued, they must be precise and detailed.  Warrants must specify descriptions of items demanded to be seized and judges must be convinced that there is probable cause to believe a crime has been committed.

As is the case with much of America’s legal system, British history is a good starting point to understand this provision.

Let’s start with the “Star Chamber” or camera stellata as it was called in Latin.  It was sort of a super-appeals Court that held its meetings in the “Starred Chamber” of the Royal Court (a place initially created for meetings of the King’s Council in England.)  Reports of its existence suggest it operated early as the 13th Century and sat at the royal Palace of Westminster until 1641.

Made up of royal advisors and judges, the so called “Star Chamber’s” primary responsibility was to address civil and criminal matters involving elites to ensure that the kingdom’s laws were enforced against the powerful and the prominent.  Its sessions were held in secret.  It made no pretense of operating under traditional court rules involving criminal or civil procedure.  There was also no right of appeal, no juries and even no right to confront accusers or even for witnesses to testify.  However perhaps more offensive than these predations was its authority to issue “general warrants.”  These warrants were given to the sheriff or other local law enforcement officer and empowered them to retrieve items necessary to support the Star Chambers pre-ordained conclusions.

In other words, instead of saying that based on a signed statement by a witness, J. Smith was believed to hold in his home, item X, an illegal product, “general warrants” allowed the Sheriff to search all of J. Smith’s properties and seize any and all of his personal items without identifying any particular item.  The seized items would be subsequently examined by the staff of the Star Chamber to see which if any could be used as evidence against J. Smith.  The items typically weren’t returned and even when they were, they were often damaged or destroyed.

Over time the British recognized the inherent abuses associated with the operations of the Star Chamber. Finally, in 1640, the British Parliament adopted the Habeas Corpus Act and abolished the Star Chamber in 1641.

Unfortunately when making the decision to shut down the Star Chamber, the British Parliament hadn’t acted to eliminate the use of general warrants.  Abuses involving general warrants would continue over another 100 years before British society generally would recognize the ills of its use in particular.

One of the most prominent cases of abuse of general warrants that the founders would have been familiar with was the fall out from the British government’s attempt to use general warrants against Englishman John Wilkes, publisher and political activist and critic of the Crown, in 1763.

Wilkes, a member of parliament, during Prime Minister George Grenville’s government, published “The North Briton” which mocked and criticized King George III and the Grenville administration.  Using general warrants King George had Wilkes and nearly 50 of his associates arrested and charged with seditious libel.  Not only were he and his associates arrested, their personal property, papers, and effects were seized. The abuses that occurred were obvious for all to see.  As a Member of Parliament, Wilkes had immunity from these charges and while he was able to convince the Chief Justice to dismiss the case his troubles wouldn’t end.  Within the next 5 years he’d be charged again and again.  Notwithstanding these charges and subsequent expulsion from Parliament he would be re-elected 3 times.

Wilkes fled to France but eventually returned to England.  Wilkes would subsequently be elected Mayor of London and get recognition for his efforts to support the rights of English citizens and his efforts contributed to the fall of the Grenville government.   Wilkes’ ongoing arguments for Freedom of the Press, broader suffrage rights and religious toleration would ultimately find broad political support in England before his death.

But perhaps the greatest influence for the framers was the use of “general warrants” to enforce the infamous Townshend Acts of 1767.  Passed by the British Parliament, the Townshend Acts was adopted purportedly to provide for the salaries of colonial appointees, but many colonialists suspected its primary if not total rationale was to establish the precedent that the British Parliament had the right to tax the colonies.

As part of its efforts to enforce this revenue act, the British Parliament created the American Board of Customs Commissioners and the commission leapt at the opportunity to use “general warrants” to deter smuggling and tax evasion.  These warrants issued under the authority of the crown were particularly troublesome.  They violated the colonial charters’ rules that warrants were legal only when they provide a reason and a basis for searches.   Whereas Colonial warrants were limited in scope and time, the Commissioner’s general warrants had no time limits other than the life of the King and were transferable allowing one person holding the warrant to transfer his rights over to the other.  Additionally, the warrant holder could search any person or property at any time. Writ holders essentially were laws unto themselves.

Massachusetts Assembly James Otis whose catchphrase is “Taxation without Representation is Tyranny” called the general warrants “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book.”

The new taxes proved to be quite unpopular and colonial appointees using the general warrants even more so.  Ultimately those responsible for collections requested military assistance. The British sent the fifty-gun warship HMS Romney to Boston Harbor in May 1768 to enforce the law.   Rather than quelling the situation, this dramatic escalation made matters worse.  Starting with the Boston Massacre and the Boston Tea Party the gross abuse of general warrants and Townshend Acts would lead directly to the Declaration of Independence and the Revolution.

It is that framework which influenced the writers of the 4th amendment.  Although far more jurisprudence is placed on the importance of the first clause of the 4th Amendment, for historians, the notion that government may not issue warrants to law enforcement officers without any justification or any particular limits to seize goods or people was a powerful enough issue that it was a key ingredient in the formation not only of a provision of the Bill of Rights, but the formation of an entire nation.

Horace Cooper is a senior fellow with the Heartland Institute and is a writer and legal commentator

March 12, 2012

Essay #16

- Guest Essayist: Dr. Charles K. Rowley, General Director of The Locke Institute and Duncan Black Professor Emeritus of Economics at George Mason University

March 9, 2012 – Amendment IV: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. – Guest Essayist: Dr. Charles K. Rowley, General Director of The Locke Institute and Duncan Black Professor Emeritus of Economics at George Mason University

Although my assignment is to discuss the first clause of the Fourth Amendment, I cannot do so effectively without referring also to the second clause. Therefore, my Essay embraces both clauses, while focusing primary attention on the first.

Like many other areas of American law, the Fourth Amendment is rooted in English legal doctrine. Sir Edward Coke, in Semayne’s case (1604) stated: ‘The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.’  In this judgment, the Court determined that the King was not endowed with unlimited authority to intrude upon his subjects’ dwellings, while recognizing that the King’s agents were permitted to conduct searches and seizures under specified conditions, when their purpose was lawful, and when a warrant had been secured.

The 1760s witnessed a significant growth in the rate of litigation against government agents using general warrants to locate and seize materials relating to John Wilkes. Wilkes’ publications attacked vehemently not only government policies, but the King himself. The most famous of these cases was Entick v. Carrington (1765) in which Charles Pratt, 1st Earl Camden, ruled that the forcible entry by the King’s Messenger into the home of John Entick, and the search for and seizure of pamphlets and other materials under a general warrant was unlawful.  This case established the English precedent that the executive is limited by common law in intruding upon private property.

Unlike other provisions in the ‘Bill of Rights’, however, the Fourth Amendment was grounded mainly in American colonial experience, rather than in English history.  In order to stem rampant smuggling by tariff-evading colonialists, the British parliament had conferred vast powers of search on British customs officials.  The Writ of Assistance was a general search warrant granting such officials virtually unlimited discretion to search, and was valid throughout the lifetime of a sovereign. Casting its net widely, such a writ required neither ‘probable cause’, nor any description of persons or premises, nor even a magistrate’s authorization of a particular search. The arbitrary nature and capricious application of this writ enraged many colonialists and drove post-revolutionary arguments in favor of the Fourth Amendment (Jacob Landynski, ‘Fourth Amendment’, The Oxford Companion To The Supreme Court Of The United States. Edited by Kermit L. Hall, Oxford University Press, 1992).

Despite its apparent comprehensiveness, the Fourth Amendment actually provides very little guidance concerning how to deal with potential search situations.  Its historical justification teaches us a preference, wherever feasible, for a search under warrant over a judicially unsupervised police action.  Its text requires a standard of ‘probable cause’, and a description of the persons and premises involved.  However, the text does not define ‘probable cause’, nor does it even define a ‘search’.  In such circumstances, the United States Supreme Court has played a significant role, both in construing the text, and in determining how closely to hew to the history of the amendment.

Early on, the Court construed the text strictly and interpreted history narrowly.  In a changing environment, such construction allowed many avenues for government agents to evade the reach of the Amendment.  For example, for some time, the Court determined that electronic eavesdropping did not fall within the reach of the Amendment.  Similarly, administrative inspections were exempt because they were viewed as invading ‘only’ the privacy interest of the individual rather than his security interest.  Only after the Court moved away from strict construction, was it willing to hold that these new forms of search fell within the scope of the Amendment.

The great dilemma of interpretation concerns the relationship between the Amendment’s two clauses.  The first clause bans unreasonable searches while the second clause defines the conditions for issuance of a warrant.  Three possible interpretations emerge, each of which has been sanctioned by the Court at one time or another.

The most obvious interpretation is to consider the warrant clause as explanatory of the reasonableness clause.  This interpretation has been followed in most of the Court’s cases.  In the judgment of Justice Potter, ‘searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions.’ (Katz v. United States, 1967)

A second interpretation reinforces the first, by inferring that some searches are sufficiently offensive to civilized standards of behavior as to be unreasonable even under warrant.  In this interpretation, the Court in 1886 proscribed the search and seizure of private papers even though such search was authorized by judicial process.  In 1921, the Court limited a search to contraband and the fruits of crime, banning the seizure of mere evidence.  These restrictions, however, no longer apply.

The third interpretation treats the two clauses as separable, as was implied in the nature of my commission for this Essay.  The reasonableness of a search, in this interpretation, is not dependent on the existence of a warrant, but on what Justice Minton called, ‘the facts and circumstances – the total atmosphere of the case’ (United States v. Rabinowitz, 1950).  Between 1950 and 1969, this interpretation ruled and the Court sanctioned extensive warrantless searches of premises where arrests were made.

Either of the first two interpretations is faithful to the purpose of the Amendment.  The third interpretation, however, is not.  Once a standard of reasonableness is segmented from the warrant requirement, it provides no standard whatsoever.  A determination of probable cause, even in non-exigency situations is then simply made by the police, and citizen protection is completely denied.  Unfortunately, at the present time, the Court is leaning once again in favor of the third interpretation – under a Hobbesian pressure from a terrorist-infested environment – even while it continues to pay lip-service to the first.

The Amendment covers arrest as well as search, albeit with an important difference between the two.  An outdoor felon arrest is always viewed as an exigency, not requiring a warrant.  An entry into a person’s house, in order to make an arrest, requires a warrant, unless an exigency can be demonstrated.

Perhaps the most controversial feature of the Court’s Fourth Amendment jurisprudence is the rule requiring exclusion of evidence seized in violation of constitutional standards.  Suppressing evidence merely because of the wrongful manner in which it was acquired is unique to American law.  This exclusionary rule first appeared in Boyd v. United States (1886). It was made explicit for the federal courts in Weeks v. United States (1914).  It was extended to state prosecutions in Mapp v. Ohio (1961).  The exclusionary rule was rigorously enforced until 1984, when the Court retreated somewhat in United States v. Leon.  The justices ruled that ‘good faith’ reliance by police on a defective warrant does not require exclusion.

This back-track coincides with a more general retreat by the Court into the feel-good fuzziness of a living constitution.  Eventually, such a retreat may leave the Court sanctioning warrantless searches under non-exigent circumstances.  At such time, an unconstitutional Supreme Court, to all intents and purposes, will have arbitrarily repealed the Fourth Amendment to the Constitution of the United States.

Charles K. Rowley, Ph.D. is President and General Director of The Locke Institute in Fairfax, Virginia and Duncan Black Professor Emeritus of Economics at George Mason University.  For further details see www.thelockeinstitute.org and www.charlesrowley.com

March 9, 2012 

Essay #15 

Guest Essayist: Andrew Dykstal, a Junior at Hillsdale College

Amendment III

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

The Third Amendment seldom enjoys press or study; one high school-level text dismisses it with a single sentence to the effect of “This amendment has been unimportant since its adoption.” Nevertheless, the Third Amendment offers valuable insight into the Constitution’s intended restraints on standing armies and the relationship between civil and military authorities. The Third Amendment directly protects the property and freedom of individual citizens, but it also imposes an additional limit on the power of the executive to maintain military power without the consent of the legislature.

The surface-level meaning of the Third Amendment is quite straightforward: In peacetime, the federal government cannot use any residence to house soldiers without the consent of the owner. Only in wartime–a condition that only Congress can declare–can soldiers be housed in private residences. Even in this case, Congress must provide for this mediation of property rights by an act of law distinct from a declaration of war. In the only significant court case (Engblom v. Carey, 1982) involving the Third Amendment, the Second Circuit Court of Appeals held that the concept of “soldier” can be broadly construed to include National Guardsmen. More significantly, the court held that “house” includes dwellings not owned by the inhabitant, such as apartments and rented rooms. The Third Amendment therefore constitutes a broad protection of the citizenry against legislative power in peacetime and the executive at any time.

In contemporary times, this protection may seem unnecessary or redundant with, say, the Fourth Amendment. But when the Bill of Rights was drafted, memories of royal abuse were still fresh in American minds, and the question of abusive military was a subject of intense debate between the Federalists–the people who supported the ratification of the Constitution–and the Antifederalists–the people who opposed it. The Third Amendment addresses on of the Antifederalists’ historically-grounded concerns. The Declaration of Independence reads, in part, “He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. He has affected to render the Military independent of and superior to the Civil power….For Quartering large bodies of armed troops among us…” This indictment of King George III bridges two separate but equally significant issues. First was the traditional, specific aversion to the quartering of troops in private homes. Parliament passed a series of Quartering Acts beginning in 1765, directly contravening the 1689 English Bill of Rights. These acts called into question the Americans’ rights as Englishmen and subjected them to treatment unconscionable for citizens of the Empire. More pragmatically, the conduct of British troops, stationed far from home in what was often considered a colonial backwater, was often reprehensible, and crimes against colonists increased in frequency and severity as political tension grew. The colonists experienced a direct, vivid reminder of why the quartering of soldiers in homes had been explicitly forbidden under British law for decades.

The second issue at the heart of this indictment of King George III (and at the heart of the Third Amendment) is substantially more interesting from a contemporary perspective. The very existence of a standing army in the colonies was generally taken as offensive, and this sentiment influenced the development of the Constitution. The Third Amendment renders significantly more difficult the maintenance of “in times of peace, Standing Armies without the Consent of our Legislatures.” Specifically, the Third Amendment checks executive and military power by increasing the cost of maintaining a standing army. In Federalist 26, Alexander Hamilton describes the way in which regular funding renewal forces the legislature to continuously revisit the question of a standing army. Under Article One, Section 8, the executive is reliant on legislative approval to fund the military, and the Third Amendment helps to prevent an end run around these measures; the federal government must make appropriations via Congress to support the military. The military cannot support itself directly from the people unwilling hospitality. With the memory of the threat a standing army can pose to liberty in mind, the Constitution’s framers put in place both primary and incidental restrictions on the nature of executive and military power.

The specific protection afforded by the Third Amendment has not, thankfully, seen as much use as those afforded elsewhere in the Bill of Rights, but the ideas and intent behind this amendment can still educate us about our nation’s history and inform our current policies. The Third Amendment speaks to the grave responsibility in the hands of the legislature as long as the United States maintains a powerful military in war and peacetime alike, and it speaks to the care necessary in the exercise even of necessary power.

March 8, 2012

Essay #14

Guest Essayist: William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Amendment III

“No soldier shall, in time of peace, be quartered in any house, without consent of the Owner, nor in time of war, but in a manner prescribed by law.”

Supreme Court Justice Joseph Story, author of perhaps the best commentary on the Constitution, wasted little time with the Third Amendment: “This provision speaks for itself.”  So it does, but a few words of background can explain why the United States Congress and the people they represented thought it worth adding.

During the French and Indian War the British found themselves harried by what we would now call guerrilla strikes.  They had some regular army bases—some of the best of them along the border with Quebec. But given the character of the war they were fighting they needed to move forces quickly into undefended areas to counter French and Indian raiders.  And so they would occupy an unsecured and threatened area—protecting the lives and property of the local citizens in exchange for the commandeered use of the locals’ property for that purpose.

After the war, this practice (as our saying now goes) got old in a hurry.  By 1765, Benjamin Franklin complained that “there are no want of barracks in Quebec, or any part of American; but if an increase of them is necessary, at whose expense should that be?”  Surely not that of private citizens. To Franklin’s complaint about property rights, Samuel Adams added a political one: “where military power is introduced, military maxims are propagated and adopted, which are inconsistent with and must soon eradicate every idea of civil government.”  By occupying the property of private landowners, the British Army acted as if a law unto itself.

Colonists’ outrage heightened in Adams’s own Boston, where the early stirrings of armed resistance to British occupation provoked the Parliament to pass the Intolerable Acts (as the colonists called them), making any public gathering an act of treason and formally providing for quartering troops in private homes.  Upon founding the Union in 1774, Americans saw their representatives in the Continental Congress pass a law in favor of “the better providing suitable quarters for officers and soldiers in his majesty’s service, in North America.”  Once resolved upon independence, the colonists listed the British practice among the grievances proving the tyrannical character of George III’s rule.

The lack of such a provision numbered among the several complaints lodged against the 1787 Constitution by the Anti-Federalists during the ratification fight.  After the Constitution passed—barely, in several states—James Madison and the first United States Congress took up the matter of amendments.  One of the strongest advocates of what would become the Third Amendment was Thomas Sumter of South Carolina; the Carolina Gamecock had won his nickname by inducing Lord Cornwallis to get out of the deep south, moving on toward his unlucky fate at the hands of Washington and the French Navy at Yorktown, Virginia.  Beyond property rights and politics, Sumter went to the intimate heart of the matter: property occupied by soldiers “would lie at the mercy of men irritated by a refusal”—men expecting obedience to the orders they issue—“and well disposed to destroy the peace of the family.”  With that gentlemanly description of ungentlemanly conduct ringing in their ears, the Congressmen gladly passed the amendment.

Notice the important caveat.  Times of extreme emergency may require the risk and burden of quartering troops in private homes.  Accordingly, Congress provided that the practice might be renewed by legislative act.  The lives, liberties, and property of American citizens, even the sanctity of the family, might under certain conditions be more at risk from an enemy force than from the forces charged to defend them.  Then and only then would a Congress or a state legislature dare to enact such a measure.

Although one shouldn’t read much into the order of the first ten amendments (famously, the First Amendment is first only by accident), the placement of the Third Amendment does make good sense.  It follows the Second Amendment stipulation of the right to bear arms; an American household usually can defend itself if family members are rightly armed and trained.  It precedes the Fourth Amendments stipulation of security against unreasonable searches and seizures.  The right to be free of military occupation in one’s own home from one’s own citizen-army sits well between the rights of self-defense and of the orderly rule of law.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.

March 7, 2012 

Essay #13 

Guest Essayist: Dr. John Lott, author of More Guns, Less Crime (University of Chicago Press, third edition, 2010).

“The right of the people to keep and bear Arms, shall not be infringed”

To an overwhelming percentage of Americans, the constitutional question over DC’s and Chicago’s gun bans seemed simple enough.  The plain meaning of the amendment was clear, and the Supreme Court agreed.  In 2008 and 2010, Supreme Court decisions struck down gun bans and gunlock laws and decided that Americans have a right to self-defense. These were contested decisions, both being decided by close 5 to 4 votes.  The four dissenting liberals claimed that there exists no individual right to “self-defense,” and even if such a right existed, it could be overridden by the public interest of reducing gun crimes and suicides.

In his 2008 dissent, Justice Stephen Breyer claimed that the “thought of self-defense primarily in terms of outbreaks of fighting with Indian tribes, rebellions such as Shays’ Rebellion, marauders, and crime-related dangers to travelers . . . .” is unrelated to the fears that Americans face today from crime in urban areas.  He claims that the proposition that “householders’ possession of loaded handguns help to frighten away intruders” as “a question without a directly provable answer.”  And that “none of the studies can show that [handgun bans are] not worthwhile.”

But a simple word count shows how Breyer’s fear over letting law-abiding Americans own guns fills his dissent.  Just the words “crime,”  “criminal,” “criminologist,” “death,” “homicide,” “murder,” “life-threatening,” “injury,” “rape,” “robbery,” “assault,” “safety,” and “victim” were used a total of 163 times in 44 pages.  The terms “accidents” and “suicide” by themselves were mentioned an additional 13 times each.  While other words could be included, these words alone averaged 4.3 per page of his dissent.

Many others shared Breyer’s concerns that murder and violent crime rates would soar after the Supreme Court struck down the Washington, D.C. and Chicago gun control laws. Politicians predicted disaster.  “More handguns in the District of Columbia will only lead to more handgun violence,” Washington’s Mayor Adrian Fenty warned the day the court made its decision.  Chicago’s Mayor Daley predicted that we would “go back to the Old West, you have a gun and I have a gun and we’ll settle it in the streets . . . .” The New York Times even editorialized this month about “the Supreme Court’s “unwise” decision that there is a right for people “to keep guns in the home.”

Yet, Armageddon never happened. Indeed, in the year after the 2008 Heller decision, the murder rate fell two-and-a-half times faster in DC than in the rest of the country. It also fell more than three as fast as in other cities that are close to DC’s size.

And murders in DC have continued to fall.  If you compare the first six months of this year to the first six months of 2008,  the same time immediately preceding the Supreme Court’s late June Heller decision, murders have now fallen by 34%.

To top it off, gun crimes fell more than non-gun crimes.  Robberies with guns fell by 25%, while robberies without guns have fallen by 8%.  Assaults with guns fell by 37%, while assaults without guns fell by 12%.  Just as with right-to-carry laws, when law-abiding citizens have guns some criminals stop carrying theirs.

Similarly, the experience with crime data for Chicago shows that, as in DC, murder and gun crime rates didn’t rise after the bans were eliminated — they plummeted. They have fallen much more than the national crime rate.  On this topic, the national media has remained completely silent.

In the first six months of last year, there were 14% fewer murders in Chicago compared to the first six months of last year – back when owning handguns was illegal. It was the largest drop in Chicago’s murder rate since the handgun ban went into effect in 1982. Meanwhile, the other four most populous cities experienced a total drop at the same time of only 6 percent.

The benefit could have been even greater.  Getting a handgun permit in DC and Chicago is an expensive and difficult process, meaning only the relatively wealthy go through it.  Only a few thousand people had handguns registered in Chicago by the middle of last year.  That limits the benefits from the Supreme Court decisions since it is the poor who are the most likely victims of crime and who benefit the most from being able to protect themselves.

For DC, the biggest change was the Supreme Court striking down the law making it illegal to possess a loaded gun.  Over 70,000 people have permits for long guns that they can now legally used to protect  themselves.

Lower crime rates in Chicago and DC by themselves don’t prove that gun control increases murders, even when combined with the quite familiar story of how their murder rates soared and stayed high after the gun bans were imposed.

But these aren’t isolated examples.  Around the world, whenever guns are banned, murder rates rise.  Gun control advocates explained the huge increases in murder and violent crime rates Chicago and DC by saying that those bans weren’t fair tests unless the entire country adopted a ban.  Even island nations, such as Ireland and the UK — with no neighbors to blame — have seen increases in murder rates. The same horror stories about blood in the streets have surrounded the debate over concealed handguns. Some said it was necessary to ban guns in public places.  The horror stories never came true and the data is now so obvious that as of November, only one state, Illinois, will still completely ban law-abiding citizens from carrying concealed handguns.  Forty-one states will have either permissive right-to-carry laws or no longer even require a permit.

The regulations that still exist in Chicago and DC primarily disarm the most likely victims of crime. Hopefully, even the poor in these areas will soon also have more of an opportunity to defend themselves also.

Dr. John Lott is the co-author with Grover Norquist of the just released book: Debacle: Obama’s War on Jobs and Growth and What We Can Do Now to Regain Our Future.  He has held research positions at academic institutions including the University of Chicago, Yale University, the Wharton School at the University of Pennsylvania, Stanford, Rice, and the University of Maryland, College Park and at the American Enterprise Institute.  Lott was the chief economist at the United States Sentencing Commission during 1988 and 1989. He has published over 100 articles in peer-reviewed academic journals related to his research areas, and has authored seven books, including “More Guns, Less Crime”, “The Bias Against Guns” and “Freedomnomics.”  He is a contributor and columnist for Fox News.  Lott earned his Ph.D. in economics from UCLA in 1984.

 

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment II:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment II: A Well Regulated Militia Being Necessary to the Security of a Free State

When Paul Revere and his companions alerted the Massachusetts countryside of the movement of British troops, he warned his fellow-British subjects, “The Regulars are coming out.” In contrast to those troops, with their standard drill, formations, equipment, and armament, the Patriot combatants at Lexington and Concord (as well as Revere himself) were “Minutemen,” a lightly-armed, organized rapid-response component of the colonial militia. As all such militias at the time, they were “irregulars,” though the quality of the Minutemen’s equipment and training was superior to that of the militia as a whole. The distinction between such organized parts and the general militia was continued by the states, and, beginning in 1792, in the second federal Militia Act. It is a distinction that, despite changes in the nature of the militia concept, is preserved in current law.

Militia service in the colonies/states extended to all men able to bear arms, subject to some variations as to age and race. Universal service was both a practical necessity—the need to deal with insurrections and with Indian raids—and a reflection of the ancient republican idea that military service was a necessary, though not sufficient, qualification for participation in the community’s governance. Laws also typically required that individuals keep arms sufficient to serve in the militia. In fact, the armament of individual militiamen varied widely, from military-style smooth-bore muskets (e.g. the “Brown Bess”), to—more rarely—longer-range but slower-to-reload rifles, to fowling pieces and other less useful weaponry. Due to these and other limitations, militia units were found ineffective and unsuitable for pitched battle. In the field, they were used mainly for irregular, partisan-style warfare and, as adjuncts to regular units, for sniping and for harassment from the flanks of the line of battle.

There were frequent complaints about the militia’s performance. In a letter to the Continental Congress, General George Washington acidly passed judgment:

To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows….

Alexander Hamilton, who made the jump from a New York militia artillery unit to the Continental Army, was more conciliatory, magnanimously softening his criticism with praise in Federalist 25:

The American militia, in the course of the late war, have, by their valour on numerous occasions, erected eternal monuments to their fame; but the bravest of them know and feel, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.

Hamilton supported a standing army. But, as Elbridge Gerry and other anti-federalists argued, the militia was a necessary bulwark against the dangers from a national standing army. Still, the war-time experience described above could not be ignored. To be effective, such a militia had to be “well-regulated.” To “regulate” was to standardize, to conform to a norm, here, standard weaponry, equipment, and drill. The word did not have today’s principal connotation, to “control”; the early American word for the latter was the government’s power to “police.”

The Constitution’s critics were alarmed that Congress was given the power under the Constitution to “provide for organizing, arming, and disciplining the Militia….” In the minds of suspicious republicans, this afforded Congress the means to establish only a “select militia” under national control, in effect creating a national standing army by another name and laying the states prostrate at the feet of the national Leviathan. Moreover, like the 17-th century Stuart kings, Congress could complete the tyranny by passing laws to disarm individual Americans.

To lessen that potentiality, the Second Amendment was adopted for what has been described today as, figuratively speaking, a “nuclear option.” To the extent that Congress does not regulate the militia, the states are free to do so under general principles of federalism, as the Supreme Court recognized in 1820 in Houston v. Moore. The Second Amendment is not needed for that possibility. But if the Congress seeks to disarm the citizenry that composes the militia, recourse has to exist to first causes, here, the ultimate right of the people to defend their liberties, their “unalienable rights” with which they are “endowed by their Creator.” As the Minutemen did in opposition to King George, the people have the right to organize themselves into militias if the states are impotent to oppose a national tyrant. That right belongs to each individual, though it would be exercised collectively, just as the First Amendment’s right to assemble to petition the government for a redress of grievances would be. It is crucial to an understanding of the Second Amendment to keep this point in focus.

Then why did the Framers not just write that there is a personal right to own guns? Describing the Second Amendment, Supreme Court Justice Joseph Story wrote in his influential 1833 treatise on the Constitution, “The militia is the natural defence of a free country….” He then famously continued, “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers….”

Notice the division and simultaneous relation between the reason for the policy and the definition of the right itself. It mirrors the division in the Second Amendment, both in the original draft version presented by James Madison to the First Congress and in the restyled final version. The pattern for the Second Amendment, as for much of the rest of the Bill of Rights, was the English Bill of Rights of 1689, which, too, set up a similar textual division between concerns over the threat from standing armies and the right of the people to have arms. With some internal variations, early state constitutions maintained that distinction. Within the states, the danger from standing armies would come from their own governments, which would also be the ones to organize their militias. If the right to keep and bear arms in those constitutions applied only within the state-organized militia, rather than as an individual right, it would hardly present an obstacle to a potentially tyrannical state government. Continuing the trend, petitions for a bill of rights submitted by the state conventions ratifying the Constitution again contained this familiar distinction.

Nor is the existence of a prefatory clause in the Second Amendment unusual. While the structure is different from that of the other amendments, the Second Amendment’s style was quite ordinary at the time, as a quick review of the English Bill of Rights, colonial charters, the Northwest Ordinance of 1787, state constitutions, state convention petitions, and other foundational documents amply shows. During the early Republic, such bills of rights were often viewed, as Hamilton dismissively argued in Federalist 84, as mere “aphorisms…which would sound much better in a treatise of ethics, than in a constitution of government.” Such explanatory clauses allowed for ringing philosophical declarations. Today, such clauses have no legal effect but can shed light on the ratifiers’ motivation for mentioning the provision and can help clarify ambiguities. Still, as Justice Antonin Scalia wrote in his extensive analysis in the 2008 gun rights case, D.C. v. Heller, a prefatory clause cannot limit a well-understood right.

If it is said that a vigorous First Amendment makes possible a healthy republic, a vigorous Second Amendment is needed to ensure it.

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

March 5, 2012 

Essay #11 

Amendment I:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In the American political tradition, we often refer to the freedoms of religion, speech, press, and assembly as our “first freedoms”; first not only because they are protected by the First Amendment to our Constitution but also because the freedom to speak, write, worship, and assemble peacefully is central to any conception of liberty worthy of the name. As Justice Benjamin Cardozo noted in an important Supreme Court case in 1937, the “freedom of thought and speech” is the “matrix, the indispensable condition of nearly every other form of freedom.”

But simply declaring, as the First Amendment does, that “Congress shall make no law respecting an establishment of religion” or “abridging the freedom of speech, or of the press or the right of people peaceably to assemble” does not immediately settle our current debates about the shape this freedom should take in political life. For the government will, as it always has, make some speech—libel, fraud, perjury, etc.—subject to criminal sanctions. The question we are constantly wrestling with is where the line between protected an unprotected speech is to be drawn. Just last week, for example, the Supreme Court heard oral arguments in United States v. Alvarez, a case challenging a congressional act that made it a crime to claim falsely to have won a military honor.

Xavier Alvarez, an elected member of a local government board in eastern Los Angeles County, told a group of people in 2007 that he was a retired marine of 25 years and that he had been awarded a Congressional Medal of Honor for his heroic military service. Although he and his lawyers admit there was no truth to these claims, Alvarez nonetheless insists he had a constitutional right to make them. Whatever the Supreme Court decides, the outcome will depend on answers to some weighty questions– What is the purpose of the freedom of speech? Why do we have it? And are some types of speech beyond the pale of what is legitimately protected by the Constitution? The same may be said about the limits of religion and assembly, for we are always debating these anew. Is the Obama Administration’s mandate that religious organizations cover contraception, abortafacient drugs, and sterilization in their health insurance policies an affront to religious liberty? Should religious employers be subject to federal anti-discrimination laws? Is there a right to picket at the funerals of military servicemen? Can people simply campout in public spaces without appropriate permits?

To begin to answer these questions, it seems we must think through and understand our entire scheme of constitutional government. In a regime that seeks to protect the rights of individuals and create space for the vital institutions of civil society, we must balance the legitimate need for law and order against principled limits on government power. As the Founders were well aware, a legislature, made of ambitious and imperfect men, will, if left unchecked, draw “all power into its impetuous vortex.” The freedoms in the First Amendment stand as a bulwark against this type of concentration of power, first by protecting the liberty of conscience and the rights of religious and civic organizations and, second, by reminding successive generations about the rights that are indispensable to a free society. The power and force of the First Amendment is muted, however, if citizens are not educated and engaged. As the principal author of the First Amendment, James Madison, acknowledged, the “only guardian of true liberty” in a republican regime is, at the end of the day, the widespread “advancement and diffusion of knowledge.”

Justin Dyer, Ph.D. teaches political science at the University of Missouri, and he is the author of Natural Law and the Antislavery Constitutional Tradition (Cambridge University Press).

Friday, March 2, 2012 

Essay #10 

 

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

It is a commonplace to trace the origins of the right to petition the government for a redress of grievances to Magna Carta in 1215. There, Barons displeased with King John’s pretension to absolute, forced him to agree to specific limitations on his authority in deference to that of the nobility. Chapter 61 of the Great Charter (http://www.constitution.org/eng/magnacar.htm) provides:

Since, moveover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. [Emphasis added]

Philip Kurland and Ralph Lerner’s invaluable The Founders’ Constitution contains in its section on the First Amendment the report (http://press-pubs.uchicago.edu/founders/documents/amendI_assemblys6.html) of the 1688 “Trial of the Seven Bishops for Publishing a Libel.” The bishops were accused of libel when they attempted to petition King James II in protest of his declaration of limited religious freedom for Catholics and other dissenters from the Church of England. They were found not guilty after a trial in the Court of King’s Bench in which Justice Holloway told the jury:

Gentlemen, the end and intention of every action is to be considered; and likewise, in this case, we are to consider the nature of the offence that these noble persons are charged with; it is for delivering a petition, which, according as they have made their defence, was with all the humility and decency that could be: so that if there was no ill intent, and they were not (as it is not, nor can be pretended they were) men of evil lives, or the like, to deliver a petition cannot be a fault, it being the right of every subject to petition. If you are satisfied there was an ill intention of sedition, or the like, you ought to find them guilty: but if there be nothing in the case that you find, but only that they did deliver a petition to save themselves harmless, and to free themselves from blame, by shewing the reason of their disobedience to the king’s command, which they apprehended to be a grievance to them, and which they could not in conscience give obedience to, I cannot think it is a libel: it is left to you, gentlemen, but that is my opinion.

The 1689 Bill of Rights (http://www.fordham.edu/halsall/mod/1689billofrights.asp) explicitly protected “the right of the subjects to petition the king” and said “all commitments and prosecutions for such petitioning are illegal.”

By the time the first amendments to the new United States Constitution were being considered in 1789, the right to petition was well established in U.S. practice. The colonies had widely recognized and employed the right of citizens to petition their government. The Declaration of Independence (http://www.archives.gov/exhibits/charters/declaration_transcript.html) singled out the Crown’s treatment of colonists’ petitions for redress (“Our repeated Petitions have been answered only by repeated injury.”) in its list of grievances. The debate over the initial proposal of the First Amendment recognition “that these rights belonged to the people” and the drafters “conceived them to be inherent; and all that they meant to provide was against their being infringed by the government.” The First Amendment’s explicit protection of the right from Congressional interference was not a novel development.

After John Quincy Adams left the presidency in 1829, he became embroiled in the most significant right of petition controversy in U.S. history. He had been elected to Congress and began presenting petitions in behalf of citizens calling for the abolition of slavery in the District of Columbia. In the 1830s, a swelling number of petitions from abolitionists were being presented to Congress and the practice at that time of considering all petitions made the growing number seem unmanageable to some. Additionally, defenders of slavery preferred to silence the clamor over the terrible practice. In 1836, Congress adopted (117-68) a resolution: “That all petitions, memorials, resolutions, propositions, or papers, relating in any way or to any extent whatever, to the subject of slavery, or to the abolition of slavery, shall, without being printed or referred, be laid upon the table, and that no further action whatever shall be had thereon.” Adams called this new “gag rule” “a direct violation of the constitution of the United States, the rules of this House, and the rights of my constituents” and worked for eight years to see it repealed. In 1844, Representative Adams moved a resolution to revoke the rule (which had become a standing rule in 1840) that was adopted 108-80. This marked the high water mark of petitioning and in the aftermath, the right was “little exercised in the aftermath of the gag rule.” David C. Frederick, “John Quincy Adams, Slavery, and the Right of Petition” 9 Law & History Review 113 (Spring 1991).

These stories trace in broad outlines the “rise and fall” of the petition right; more accurately, the slow development, acceptance and constitutionalization, and relatively swift descent into disuse of this valuable right. Since the antebellum period, the right of petition has been largely neglected, though it is occasionally the subject of litigation and the U.S. Supreme Court decided a petition clause case, Borough of Duryea v. Guarnieri, in 2011 (http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf).

Joseph Story describes the petition right as resulting “from the very nature of [the] structure and institutions” of “a republican government.” (Joseph Story, Commentaries on the Constitution, vol. 3, §1887 at http://www.constitution.org/js/js_344.htm) This comment may provide a clue to the relative disuse of the right since the Civil War. With the extension of the franchise to more and more Americans, the ability to directly communicate desires and disapproval to elected representatives by voting and through political parties, has probably eclipsed the importance of petitioning. Coupled with the enhanced status of the right of free speech and advances in communications technology, which fill many of the practical roles (such as providing information to legislatures and allowing citizens to express their opinions) that formal petitions served, the practice of petitioning Congress is not likely to make a resurgence.

This is not to say that the principles it protected are not still vital. The tendency of courts and the executive branch to make decisions previously understood to be only the province of the legislature, threaten the principles of representative government and can serve to exclude all but the most well-connected from influencing government. A proper understanding of what the right to petition was meant to protect could be a helpful spur to citizens to insist that its spirit—the ability of citizens to affect the legislative process—be respected and re-enthroned as a foundation of constitutional government.

William C. Duncan is director of the Marriage Law Foundation. He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

March 1, 2012 

Essay #9

Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

The Right to Effective Citizenship

Free worship; free speech; freedom to publish; and the rights of the people to assemble peaceably and to petition their government: we cherish our First Amendment freedoms but we may not see how intimately they support one another, how much they need each other.

Free worship means that I may listen to the most important things, the first principles that govern my life, without fear of persecution.  These principles will anchor my conduct, providing me the standards by which I may judge my own actions and those of others.  Free speech and freedom to publish mean that I may safely tell people what I think, having worshipped—that is (among other things) having thought.

But what good would my worship, my speaking, and my writing be—beyond those who happen to worship with me, or hear me speak, or read my writings (small numbers all!)—if I and my fellow citizens had no right to get ourselves organized, to get the attention of our elected representatives, to do things that have real effects in our public life?

The right to assemble in public did not prevail in most places, in most times.  Public assemblies endanger rulers.  They can endanger the peace.  During the virulent civil wars of England, fought over intractable issues of religious conviction, what sensible king would not view such gatherings with fear and suspicion?  In his Letter Concerning Toleration the great English political philosopher John Locke acknowledged that assemblies of men had often been “nurseries of faction and sedition.”

But Locke went on to write that this was so only because “the unhappy circumstances of the oppressed or ill-settled liberty” make such men violent.  In an atmosphere of genuine religious toleration—of well-settled liberty—this need not be so.   After all, he argued, do men not meet peaceably every day in local markets?  Do they not circulate freely on the streets of cities?  Why then do rulers fear religious assemblies?  “Let us deal plainly,” Locke writes. “The magistrate is afraid of other churches, but not of his own; because he is kind and favourable to the one, but severe and cruel to the other.” But “let him let those dissenters enjoy but the same privileges in civil as in other subjects, and he will quickly find that these religious meetings will no longer be dangerous….  Just and moderate governments are everywhere quiet, everywhere, safe; but oppression raises ferments and makes men struggle to cast off an uneasy and tyrannical yoke.”

Thomas Jefferson knew his Locke. In the summer of 1774 he addressed his fellow citizens on General Gage’s proclamation in Massachusetts, “declaring aTreason for the Inhabitants of that Province to assemble themselves to consider of their Grievances and form Associations for their common Conduct on the Occasion.”  Gage was Commander in Chief of his Majesty’s army in America; his “odious and illegal proclamation must be considered as a plain and full Declaration that this despotick Viceroy will be bound by no Law, nor regard the constitutional Rights of his Majesty’s Subjects, whenever they interfere with the Plan he has formed for oppressing the good People of the Massachusetts Bay.” When Jefferson and his colleagues in the Continental Congress met two years later to issue their own proclamation—for independence and against tyranny—they never forgot that the right to assemble peaceably gives a people the way to carry their thoughts and speeches into civic action.

Fifteen years almost to the day on which Jefferson spoke, the House of Representatives debated the first ten amendments to the newly-ratified federal constitution.  The floor manager for the amendments was none other than Jefferson’s closest political ally, James Madison.  In the course of the debates the Congressmen showed that they understood matters exactly as Jefferson had done.  “If people converse together, they must assemble together,” one Member quite sensibly remarked.  But more, “the great end of meeting”—its purpose—“is to consult for the common good; but can the common good be discerned” unless “the object is reflected and shown in every light.”  That is, I may revolve a topic in my own mind a thousand times, but when when I share my thoughts with others  I will begin to see things I had overlooked.  This is the advantage of deliberation in common over mulling things over by oneself.  Still further, as another Member observed, “under a democracy, whose great end is to form a code of laws congenial to the public sentiment, the popular opinion ought to be collected and attended to.”  We not only need to think; once our thoughts have been refined and augmented by the thoughts of others, we then need to get the attention of those who can do something about the things upon which we have resolved.  The Congressmen knew that writing a letter to one’s Congressman will likely have far less effect than a petition signed by dozens—the product of a public assembly of citizens.  Therefore, the same Member concluded, “the people have the right to consult for the common good.”

When the French political philosopher and parliamentarian Alexis de Tocqueville arrived in America a half a century later, he remarked on the importance of civil associations to American self-government.  Under the old states of Europe, the class of people who stood between the central state powers and the people had been the aristocrats—the same class that forced the Magna Charta on the King of England.  But in the modern world, Tocqueville saw (he being an aristocrat), aristocracy was declining.  Absent such a class, who or what would stand in the way of an oppressive central government tyrannizing the people.  Would democracy collapse upon itself, with the people first setting up a government and then watching helplessly as it moved ponderously to crush the very rights governments are designed to secure?

Not so in America, Tocqueville saw.  There, the citizens have learned to organize themselves not `vertically’ under an aristocratic class but `horizontally’ with civil associations: political parties, churches, clubs, societies—all of them with sufficient strength to push back against unwarranted governmental encroachments.  Tocqueville reported that Americans had perfected “the art of association” to the highest degree of any people, employing this art peacefully to defend their liberties against their own governments, when necessary.  To this day, Americans dissatisfied with their local school board, their state legislature, or the federal government itself, respond by getting together with like-minded citizens and—as we like to say–`taking control of their own lives.’  In so doing, they act exactly as John Locke, the American founders, and Tocqueville wanted and expected human beings to do.  Even more, by exercising the art of association Americans to a large and impressive degree govern themselves—that is, they get things done, so that governments will need to do less.  Governments that need to do less can be smaller and likely less oppressive than governments that think they need to do it all. And those fewer things they do need to do will likely be done better.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.

February 29, 2012 

Essay #8 

Guest Essayist: James C. Duff, CEO of the Newseum and the Diversity Institute, and President and CEO of the Freedom Forum

“Congress shall make no law … abridging the freedom of … the press ….”  Those words, along with all others in the First Amendment to the Constitution of the United States, are engraved in the 74 foot high marble wall on the front of the Newseum on Pennsylvania Avenue in Washington, D.C.  The words are simple.  Enforcing those words – though not always easy or successful – is crucial to our democracy.

I recently saw a friend touring the Newseum who told me of a Russian visitor’s observation about our freedoms.  The visitor said, “We have freedom of the press in Russia too.  The difference in America is you remain free after you publish.”  His comment is both humorous and profound.

Many countries have a Bill of Rights.  Very few have mechanisms to enforce and preserve those rights.  What distinguishes our system of government from most others in the world?  What breathes life into our Constitutional freedoms?  We are indebted to our founders for the brilliant system of checks and balances of power built into our Constitution.  One of the most important checks on power is an independent and free press, “designed to serve as a powerful antidote to any abuses of power by governmental officials” as the Supreme Court noted in Mills v. Alabama (1966).

How do the mechanics and the design of the “powerful antidote” work?  Suppose Congress does make a law that abridges the freedom of the press.  In the United States, the press is free to challenge the law not only in print and other media, but also in court.  Once in court, an independent Judiciary is free to declare such a law unconstitutional and preserve the press’ freedom.  If Congress attempts to undercut the power of the Judiciary by, for example, requiring judges to explain their decisions to a Congressional committee or face impeachment for an unpopular decision, the press can expose the attempt and bring public pressure to bear on Congress.  Such critical analysis, coupled with an engaged and educated public can prevent the evisceration of an independent Judiciary (in this example) or other intrusions by one branch on another’s responsibilities.  The mechanics are circular and the gears work – most of the time.

Our history is certainly full of examples of a free and independent press exposing abuses of power by governmental officials.  Unfortunately, there are also examples in our history in which we have failed to enforce the freedom of press embodied in the First Amendment.

Only seven years after the ratification of the First Amendment, a Federalist-dominated Congress passed the Sedition Act of 1798, a tool used to suppress the contrary views of Democratic – Republican newspaper editors.  For example, Matthew Lyon, a member of the U.S. House of Representatives from Vermont and newspaper owner, was put in jail for referring to President John Adams’ “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”  It became abundantly clear that the Act was unconstitutional, and a new Congress allowed the Act to expire in 1801 but not before several egregious suppressions of a free press had occurred.

There are several other examples of suppression of the press in our history, notably during periods of war.  Abolitionist newspapers were torched in the 1830’s.  During the Civil War, the Lincoln Administration ordered the closure of several newspapers and the arrests of several newspaper editors who opposed the Union efforts.  During World War I, Congress passed the Espionage Act of 1917, President Woodrow Wilson invoked it aggressively to suppress publications opposing to the draft, and in 1919 the Supreme Court unanimously upheld the convictions of Charles Schenck and Elizabeth Baer who had been convicted of violating the act when they printed leaflets urging draftees to resist the draft.  Similarly, the mailing privileges of the Milwaukee Leader were revoked by the Postmaster General during World War I because he concluded that their articles were interfering with the military’s efforts.  The Supreme Court upheld the Postmaster General’s actions.

In retrospect, it might appear that many of these historic suppressions of a free press could not occur in the United States today and that we have made significant progress and learned from those experiences.  During times of conflict, however, our country has compromised on freedom of the press.  Whether these particular examples could be repeated or not, they demonstrate that even with the protections clearly provided in our Constitution, and even with the best form of government ever devised to ensure those protections, ultimately the best defense of our Constitutional freedoms depends on an attentive, educated and engaged citizenry.

That is why the civic education efforts of Constituting America and the Freedom Forum are so vitally important to our future.

James C. Duff is the President and chief executive officer of the Freedom Forum and CEO of the Newseum and the Diversity Institute.  Mr. Duff is the former Director of the Administrative Office of the U.S. Courts, former Counselor to Chief Justice William H. Rehnquist, and former Chairman of the U.S. Supreme Court Fellows Commission.

February 28, 2012 

Essay #7 

 

February 27, 2012 – Janine Turner Interviews Andrew Langer, President of the Institute for Liberty on The Janine Turner Radio Show!

Listen to Andrew & Janine discuss Andrew’s essay: The First Amendment: Congress Shall make no law….abridging the freedom of speech!

Guest Essayist: Andrew Langer, President of the Institute for Liberty

http://vimeo.com/37493542

Congress shall make no law… abridging the freedom of speech.

In our free republic, fewer rights are more cherished, or more important, than those enumerated in the First Amendment.  It is the hallmark of a free society that the people can speak their minds without fear of retribution from the government or other citizens.  Fundamentally, there are always two questions that accompany any dissection of free speech rights:  what is their seminal role in our society (ie, why do we have them?), and what are the limits to free speech?

People say things with which we might vehemently disagree.  They may make us angry, they may make us outraged.  And the feeling might very well be mutual.  Yet both their speech, and your own, are equally protected under the US Constitution.  For the United States, this creates a true marketplace of ideas.  A marketplace that has the benefit of allowing ideas that are reasoned, thoughtful, and valid to take hold, while ideas that simply aren’t (reasoned, thoughtful, or valid) to wither and die.

It is the latter that is perhaps free speech’s greatest asset in our society.  Justice Louis Brandeis wrote that, “sunshine is the best disinfectant,” and this is especially true when it comes to speech that, were it outlawed, would fester or become cancerous when kept behind closed doors.  In fact, when you look at societies within which free speech was outlawed, when those societies ultimately moved towards freedom, the forces of hate simply exploded on the scene, because for so long there had been no open debate or airing of the stilted beliefs of extremists groups.

In the US, we want people with the most hateful, horrible ideas to be able to say them, loudly and publicly.  That way, we can not only challenge them directly (if we want), but we know which people to avoid, if we want.  It’s as though they’ve put on the brightest, most-garish sign around their neck, saying, “AVOID ME,” and we’d be wise to heed their warnings.

Just as important, however, are the limits to those free speech rights.  It is one of the most basic hallmarks of our society that the exercise of rights is only justly limited by their direct and harmful impact on others.  In other words, I may have the right to swing my hands around wildly, but that right ends at the point where my hands meet someone else’s nose.

Though the adage still prevails that “sticks and stones may break my bones, but names can never hurt me,” the truth is that words can and do hurt—and the law has made several important carve-outs for speech that is not protected by the 1st Amendment.

One of the most basic carve-outs is for speech that is considered defamatory—which, in laymen’s terms, is essentially knowingly spreading falsehoods about a person for the purposes of harming that person’s reputation—destroying a person’s personal life or ability to make a living.  Other restrictions are placed on speech that works to incite violence, or immediate wanton lawlessness—the concept that someone can neither work to provoke people to an immediate riot, or, likewise to yell “fire” in a crowded theater.  Commercial speech, and speech over the public airwaves, can also be regulated—generally under the concept that people cannot make false claims about the goods that they sell, and that because the government assigns space on the public airwaves, the government can prohibit certain kinds of content from being broadcast if it can be deemed offensive.

But by that same token, one of the most controversial debates over free speech today if found in the realm of whether or not corporate interests have free speech rights in the same manner that individuals do.  The Supreme Court ruled in their well-known Citizens’ United decision that, in point of fact, corporations do have these rights—a decision that many progressives have decried, and are attempting to undo.

Should they succeed, it would create a very dangerous situation—not only because these corporations are taxed and regulated very similarly to individuals (and, in some cases, more stringently), and therefore ought to be able, as affected entities within a society, to speak out on their own behalf, but many corporate institutions serve valuable purposes within our civil society.

If we fail to extend free speech protections to corporations, what is there to prevent an angered government, upset with a news company’s coverage of their actions, from shutting down that news organization’s business?  While some might argue that the government would be prevented from silencing the individual journalists within that organization, should the government succeed in closing down the corporation’s tools, the journalists will have been silenced.

Dissent is the hallmark of any free society—and whether that dissent comes from individuals or corporations, it is an essential element in civil discourse.  As a people we require free speech to allow good ideas to prevail, and bad ideas to be defeated.

Andrew Langer is President of the Institute for Liberty, and host of The Broadside, a weekly internet radio show, which can be heard on the Institute for Liberty website.

February 27, 2012 

Essay #6 

Guest Essayist: Eric Rassbach, Deputy General Counsel at The Becket Fund for Religious Liberty

Watch or Listen to Janine Turner Read: The First Amendment: The Free Exercise Clause – Guest Essayist: Eric Rassbach, Deputy General Counsel at The Becket Fund for Religious Liberty

http://vimeo.com/37355534

Guest Essayist: Eric Rassbach, Deputy General Counsel at The Becket Fund for Religious Liberty

http://vimeo.com/37355534

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”

The Free Exercise Clause is perhaps the least commonly understood part of the First Amendment. The mythical “average American” presumably understands what freedom of speech means – we protect the right of almost anyone to say almost anything – and the Establishment Clause has been given the catchy, if mostly inaccurate, shorthand of “separation of church and state.” But were one to ask this hypothetical average American what protecting free exercise of religion means, she might respond with a blank stare.

So why is the Free Exercise Clause so unknown, and what does it really mean today? Some blame for the Clause’s obscurity must lie with its checkered history. That history can be divided into roughly five stages. The first stage lasted 87 years, from 1791 to 1878, and was characterized by judicial silence. Although the Clause was ratified as part of the Bill of Rights in 1791, the Supreme Court had no occasion to address it, other than to say briefly, in 1842, that it applied only to the federal government, not states and cities. This silence does not mean that the Clause had no public meaning; indeed, it was cited time and again in debates over religion in the public square. But it did not appear in court, and its meaning remained rhetorical and political, not legal.

That first phase came to an end in 1878, with the Reynolds case. In that case, the Supreme Court held that the Free Exercise Clause did not protect the practice of religious polygamy. Thus began an unsettled period for the Court’s Free Exercise jurisprudence. Two separate strands of caselaw emerged—one rooted in Reynolds and limitations on religious exercise, and another rooted in the ability of churches, synagogues, and other religious institutions to manage their own internal structures and their property.

The tensions in Free Exercise jurisprudence became apparent in a series of cases involving Jehovah’s Witnesses during the 1940s. These cases at first resulted in at first narrow readings of the Clause and then increasingly broader readings that provided protections to the Jehovah’s Witness plaintiffs.

This second and turbulent stage ended, and the third began, with Sherbert v. Verner, decided in 1963. In that case, the Court took a very strong stand in favor of individual religious liberty, holding that a Seventh-day Adventist could not be denied unemployment benefits because she was fired from her job for observing the Sabbath. The Court said that any government-imposed “substantial burden” on religious activity would be very difficult for the government to justify. This standard, extremely protective of religious liberty, represented a high-water mark in the history of the protection of Free Exercise.

The Clause’s course took a sharp turn in a less religion-friendly direction 28 years after Sherbert was decided. In Employment Division v. Smith, decided in 1990, the Court held that Native Americans who had been convicted for smoking peyote in accordance with their religious beliefs did not have a right to state unemployment benefits. Because the Oregon anti-narcotic law at issue was a “neutral rule of general applicability” the Free Exercise Clause would provide no protection to the religious plaintiffs.

This was true even though, like the Sherbert regulation, the rule imposed a “substantial burden” on their religious activity. The Smith ruling represented a dramatic shift in the law of Free Exercise, making it much more difficult for religious people to protect themselves against religion-restrictive laws. For a time, it seemed that the only way to evade Smith’s rule would be by convincing Congress and state legislatures to provide relief in the form of civil rights statutes protecting religion.

But in 2012, the Court announced a fifth and entirely new stage of the Clause’s existence in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. In Hosanna-Tabor, the Court held, in a 9-0 decision,that federal and state employment discrimination laws do not apply to “ministerial” positions. The Court thus made clear that Smith’s rule did not apply in the same way to religious institutions as it did to religious individuals. Indeed, religious activities related to “internal church decisions” would fall outside the Smith rule entirely, a result that shocked many long-time observers of the Court’s religion decisions.

The next steps for the law of Free Exercise are not clear, but they are much more hopeful for religious people and institutions than they were before Hosanna-Tabor was decided.One could argue that this up-and-down history shows a kind of national, or at least judicial, schizophrenia when it comes to the place of religious people in public life. But that schizophrenia may simply mirror Americans’ uncertainty about the role of religion in public life, especially given the increasing religious diversity of our nation. The law could move in the direction of France or other Western European countries that have in effect attempted to drive religion out of public life, or to control it directly. But the law might also move in the direction of increasing religious freedom for every American, and decreasing government interference with religious people.

So what should the Free Exercise Clause mean, at its most fundamental level? There is a case to be made that the Clause stands for the idea that every person, and every religious group, gets to decide for themselves what they believe about the good and the true, and to act on those beliefs in public. In that sense, the Clause carves out a kind of sacred space in the American body politic—a place where Americans can work out their relationship with God free from government interference, indeed, a place where the government must fear to tread. By its nature, religious freedom cannot be without limits. But by the same token government cannot be without limits, and some areas must remain completely free from government influence.

But this sacred space is under siege in today’s ever-growing regulatory state. As they expand their influence over more and more areas of American life, governments at the federal, state, and local levels increasingly run roughshod over the claims of conscience. Prominent recent examples include the federal government’s attempt in the Hosanna-Tabor case to take over some ministerial and hiring and firing decisions, as well as the recently-issued healthcare mandates that would force Catholic, Protestant, and other religious groups to violate their consciences by paying for drugs and devices they believe cause abortion. State governments have made similar attempts to limit the conscience rights of religious institutions like churches and homeless shelters, as well as the conscience rights of individuals like pharmacists and doctors who object to participating in certain medical procedures.

These conflicts will only grow in size and number as government expands and becomes more aggressively secular. Therefore it will be important for religious Americans in coming years to fight for the sacred space staked out by the Free Exercise Clause, because government will not stay out on its own.

Eric Rassbach is Deputy General Counsel at The Becket Fund for Religious Liberty, a non-profit law firm based in Washington, D.C. that defends the free expression of all religious traditions. He led the Becket Fund team that litigated the Hosanna-Tabor case.

February 24, 2012 

Essay #5 

Guest Essayist: David J. Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.

Watch or Listen to Janine Turner Read: The First Amendment: The Establishment Clause – Guest Essayist: David J. Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.

http://vimeo.com/37285867

 

Guest Essayist:David J. Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.

http://vimeo.com/37285867

The First Amendment:  The Establishment Clause

The Establishment Clause of the First Amendment might be less well known today than “the wall of separation between church and state” metaphor used by President Thomas Jefferson in an 1802 letter.  This misinterpreted metaphor has come to define the modern debate over church and state, leading many Americans to believe that the Constitution calls for the strict separation of religion and politics.

In fact, what the Establishment Clause actually accomplished is nearly opposite what the Supreme Court in the twentieth century said it means.  In barring Congress from establishing a national church, the Establishment Clause marked an important commitment of the Founders to civil and religious liberty.  Unlike England, America would not have an official church.  This is good for government, and good for religion.  Congress was prohibited from imposing a one-size-fits-all religious straitjacket on the nation, leaving state governments wide latitude of operation in matters of church and state.

In the 1947 Supreme Court decision in Everson v. Board of Education, the First Amendment policy of federalism was supplanted by the doctrine of incorporation.  Ruling that the First Amendment’s Establishment Clause is applied not just against Congress but also against the states (through the Due Process Clause of the Fourteenth Amendment), the Court put itself on a quick path to becoming the national arbiter of all disputes over religious matters pertaining to public entities.  As Justice Hugo Black wrote, “The First Amendment has erected a wall between church and state.  That wall must be kept high and impregnable.  We could not approve the slightest breach . . . .”

Under this new standard, the Supreme Court found breaches in the wall nearly everywhere it looked, as it ruled unconstitutional many longstanding practices, including prayer and Bible reading in public schools.  Assuming the mantle of a “national school board,” as one scholar put it, the Court put forward various “tests” by which it sought to determine the religious or secular purpose of public assistance to religion.

The modern legal understanding of the Establishment Clause has led to a confusing array of contradictory decisions.  For instance, whether a municipal crèche display is an unconstitutional violation of the Establishment Clause hinges in part on what other symbols—religious or secular—are included in front of city hall.  State laws allowing government funding of secular textbooks for private schools have been deemed by the Court constitutional, but government funding of field trips in private schools has been held unconstitutional.

For the Founders, public support of religion, whether by the federal or state government, was never tantamount to the unconstitutional establishment of religion. In fact, nearly all of the Founders held that the public promotion of religion and virtue was vital to the maintenance of republican institutions.  Religion was affirmed as a public good, not an evil to be kept private.  Prudence dictated, many early Americans believed, that state established churches did not make for good policy, but none argued that when a dispute arose in a state about its established church, or public support of religion, that the national government should step in and impose a solution.  That was a matter for the states to decide, and increasingly they would do so informed by constitutions and laws that upheld the full natural rights of all citizens.

Protection of religious liberty was of paramount importance to the Founders, but the means by which citizens were protected in their liberty came not mainly in the adoption of the Establishment Clause, but in the constitutional architecture as a whole.  “The Constitution is a bill of rights,” Alexander Hamilton said, emphasizing the fact that the locus of liberty is not any list, but rather the equipoise of limited government, federalism, and separation of powers that should be maintained in the Constitution’s structure.

Finally, it is worth noting that the First Amendment was not even first on the list of twelve that James Madison originally proposed in the First Congress in June 1789.  Nor was it first in the list the Congress sent to the states in September of that same year.  When the two amendments preceding what is now the First Amendment were not ratified immediately (one was about representative ratios, while the other, which was adopted as the 27th Amendment, was about congressional compensation), the Establishment Clause was thrust into its starring role as the first clause in the First Amendment.

The Establishment Clause of the First Amendment is a clear statement of the fact that the United States of America has no official church.  In endorsing the federalism of the Constitution, and explicitly barring Congress from arrogating unto itself power it does not have, the Establishment Clause reaffirms the powerful commitment of the Constitution to the promotion of civil and religious liberty.

 

David J. Bobb, Ph.D., is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.  Hillsdale’s free online course, “Constitution 101,” starts this week.  The U.S. Constitution: A Reader, around which the course is based, includes 113 documents, including a complete section on religious liberty.

February 23, 2012 

Essay #4 

Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

Watch or Listen to Janine Turner Read: *The Bill of Rights: America’s Bulwark of Liberty – Guest Essayist: Horace Cooper, senior fellow with the Heartland Institute

http://vimeo.com/37225842

 

Guest Essayist: Horace Cooper, Constituting America Fellow

Click here to buy the poster below!

The First Ten Amendments to the United States Constitution make up what is called “The Bill of Rights.”  This remarkable collection of limitations on the power of the national government was written by James Madison and heavily influenced by George Mason.  Today it operates as a barrier to oppressive government at all levels and protects citizen liberty.

While most Americans at the time of the writing of the US Constitution agreed that the Articles of Confederation had failed to provide the former colonies with the powers needed to insure the experiment in self-government would succeed, there was another contingent who argued that any new and expanded powers given to the central government must be overlaid with specific limits in order to ensure that the citizens rights wouldn’t be trampled.  They argued that rather than limiting principles, there should be specific prohibitions on what government is allowed to do, especially in the context of its treatment of its citizens.

The two camps generally called themselves Federalists and Anti-Federalists.  While the design and makeup of the original Constitution is a triumph of the Federalists, the Bill of Rights represents the success of the Anti-Federalists.

Timeless in their rigor and value, the Bill of Rights has proven to be a brilliant tool to limit government excesses and insure that the individual has the kinds of freedoms that many of us take for granted.  While the writers of the Constitution created a system of checks and balances that cause the three branches of government to be limited in their ability to achieve hegemony vis-à-vis the other, it is the Bill of Rights that has done more to protect individual liberty  — doing so by specifically placing limits on government power.

While the Federalists won the day with the original draft of the Constitution, it soon became clear that the American people wouldn’t accept the Constitution unless a Bill or Rights was agreed to.  Shortly after meeting, the first Congress began that process.  Originally 17 Amendments or changes to the Constitution were presented and passed by the House of Representatives. Of those 12 were passed by the United States Senate and sent to the states for approval in August of 1789. 10 of these  were  approved (or, ratified) with George Mason’s state of Virginia becoming the last to ratify the amendments on December 15, 1791.

Indubitably, liberties that we take for granted as Americans find their origin in the Bill of Rights.  One key aspect of the Bill of Rights is that instead of expanding or authorizing the powers of the central government, the Bill of Rights squarely and directly treats government power as a potential threat to citizen liberty and places clear and unequivocal barriers to government action.  More a list of what government cannot do, the Bill of Rights provides a zone of liberty that makes our American system of citizenship the envy of the world.

The supporters of the concept of the Bill of Rights understood that government’s tendency was to expand and over-run the individual.  And the beauty of the Bill of Rights, its simplicity is, it limits government power and by doing keeps Americans free.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

 The government cannot make you believe in a religion.

 The government cannot keep you from practicing any religion you choose.

 The government cannot keep you from saying what you wish.

 The government cannot keep you from writing what you want.

 The government cannot stop you from publishing what you wish.

 The government cannot keep you from joining together peacefully with others to express your views.

 The government cannot prevent you from complaining about what the government or others are doing to you.

The framers understood that freedom of faith, thought, political belief and other forms of expression were central to citizen liberty and they specifically barred government action in this arena.  Rather than leave to the majority whether Catholics, Protestants, Jews or even people of no faith would receive preference by the national government, the First Amendment insures that no religious group would be preferred nor would any be penalized.  It also prevents the government from using coercive powers to reward certain political thoughts or writings as well as punishing the same.  Finally it further insures that citizens have the right to complain specifically about the activities of the government and to engage in demonstrations as well as formally taking measures to get the government itself to change policies.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

 The government cannot take away your right to own and keep guns.

Rather than leave firearm access to the government, our Bill of Rights explicitly insures that the right to bear and own firearms is a fundamental right – not a privilege – that resides with every citizen.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

 The government cannot make you let soldiers to live in your house unless the country comes under attack and Congress specifically authorizes it.

Even though war-making activity is the quintessential government duty and activity, this power is not unlimited.  While it might be cost-effective or even efficient, government has to respect that our homes are our property and may not be overtaken by the military during peace-time and during war only in a legal manner determined by Congress.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 The government cannot come into your home unless it has legal permission from a judge.

Perhaps one of the greatest threats that the citizen faces is the potential that the central government will use force to enter our property whether under pretext of solving crimes or ferreting out critics of the government residing therein.  The founders recognized that the principle that the individual citizen was the “king” of his own “castle” especially when the government sought unlawful entry was a powerful limit on government excesses.  Juxtaposing judges and other magistrates before the government can take, enter or search property protected liberty in the 18th century and the 21st as well.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

 The government cannot hold you in jail for a major crime without the knowledge and approval of your fellow citizens.

 The government cannot try a person twice for the same crime.

 The government cannot make incriminate yourself.

 The government cannot take away your life, liberty, or property without following the law.

 The government cannot take your private property from you for public use unless it pays to you what your property is worth.

King George and his predecessors in England had the ability to falsely accuse and even imprison or execute his opponents without even a pretext of any real violation of the law.  Our system rejects this idea.  The Bill of Rights requires that your fellow citizens be presented with the charges against you and that those charges not be presented to you more than once or that you or your property be taken from you without having legal recourse to challenge it.  Americans can’t be forced to give incriminating testimony against themselves and their assets can’t be confiscated by the government without being justly compensated.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

 The government cannot hold you in jail for a long time without a trial if you  are accused of having broken the law.

 The government cannot deny to you a speedy trial with a jury of your fellow citizens.

 The government cannot keep secret from you those who will speak against you.

 The government cannot prevent you from having your personal attorney.

 The government cannot keep you from having other people help you defend yourself in a courtroom.

Instead of the use of secret trials and star chambers, our system specifically requires that when people are accused the trials must not be unnecessarily lengthened and must be held in public.  The individuals who decide guilt or innocent – jurors – must be impartial and residents of the area where the accused crime was to have occurred.  Instead of announcing new charges mid-trial, the government must announce the charges with specificity and must present witnesses against him and must allow him to bring in his own witnesses to testify on his behalf and may not prevent him from having legal assistance if he chooses.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

 The government cannot keep you from having a trial decided by your fellow citizens in civil disputes and the fact-finding by the jury in those trials cannot be overturned by other courts.

Civil cases, like criminal cases provide potential opportunity for liberties to be risked.  Our founders guaranteed that civil disputes will be subject to jury trials instead of the whims of government magistrates and also that the findings of jurors can’t be second guessed by judges.  The government can’t pick sides or use its judicial appointees to try  to influence the outcomes of civil disputes.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

 The government cannot make people pay an unfairly high amount of money for bail while they wait for a judge or jury to hear their case.

 The government cannot punish you for a crime in a cruel and unusual way.

The government is not allowed to skip the trial phase by holding citizens in jail with high bails having nothing to do with the severity of their crime or any flight risks they pose.  Even when citizens are found guilty, the federal government may not assess fines that aren’t connected with the severity of their crime nor may they issue punishments that are depraved and unduly harsh.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

 The government cannot limit your rights to just those listed in the Bill of Rights.

Reaffirming the anti-federalists view that government tends to expand whenever and however it can and ultimately crowding out the rights and privileges of its citizens, our founders have made it clear that the Constitution and even the Bill of Rights do not attempt to outline every existing natural or inalienable right of citizens.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

 The government cannot claim to possess more power and authority than what the Constitution permits, and all other powers not listed in the Constitution belong to the states or individuals.

Since the Constitution is a charter of specific and enumerated powers, there are rights that exist above and beyond those addressed in it.  Those powers and rights that are not specifically addressed in the Constitution and those powers that are not banned by states through the Constitution are real and duly allowed to be exercised by the states and the people.

Horace Cooper, a Constituting America Fellow, is co-chairman for Project 21’s National Advisory Board and adjunct fellow with the National Center for Public Policy Research. In addition to having taught constitutional law at George Mason University, Mr. Cooper was general counsel to U.S. House Majority Leader Dick Armey.

 

 

 

 

Guest Essayist: Richard Brookhiser, Author, James Madison

Watch or Listen to Janine Turner Read: The Bill of Rights, Purpose and Benefits – Guest Essayist: Richard Brookhiser, Author, James Madison

http://vimeo.com/37225503

Guest Essayist: Richard Brookhiser, Author, James Madison

http://vimeo.com/37225503
The Philadelphia Convention finished the Constitution and sent it on to Congress and to the states in September 1787. There was no Bill of Rights. George Mason, delegate from Virginia, had suggested adding one at the last minute, but his fellow delegates, who had been in session for three and a half months, wanted to get done and get home. They believed they had designed a structure of government that would prevent despots or overbearing majorities from seizing power; a list of rights struck them as mere ornament. “Whatever fine declarations may be inserted in any constitution,” argued New York delegate Alexander Hamilton, in the Federalist Papers (#84), “the only solid basis of all our rights” was “the general spirit of the people and of the government.”

In the year-long national debate over whether to ratify the Constitution, it became clear, however, that the American people wanted solid protections written into the new fundamental law. Religious minorities, in particular, were alarmed that the Constitution made no specific mention of their right to worship as they wished. James Madison of Virginia, like most of the delegates to the Philadelphia Convention, originally saw no need for a Bill of Rights; it would be, he feared, a “parchment barrier,” adding nothing of substance to the structural safeguards already built into the new system. But under pressure from Baptists in his home state—a minority sect long bullied by their Anglican neighbors—and from his best friend, Thomas Jefferson, who was then serving as a diplomat in Paris, Madison came around. “A bill of rights,” Jefferson wrote him, “is what the people are entitled to against every government on earth.” Madison came to see that rights written down in black and white would become “fundamental maxims of good government.” They would “rouse the attention” of Americans, who would rally to defend them.

So in June 1789, in the First Congress, Madison, who had been elected as a representative from Virginia , took the lead in drafting a set of amendments. He originally wanted to shoehorn his new additions into the body of the Constitution, but most of his colleagues favored adding them at the end. Congress submitted twelve amendments to the states for ratification in September 1789. The first, which regulated the size of congressional districts, fell by the wayside. The second, which concerned congressional pay, was not ratified until 1992, when it became the 27th Amendment. But by December 1791, the remaining ten amendments had been ratified—the Bill of Rights of today. Their distinct position, and the magic number ten—like another famous set of laws—ensured that they would “rouse the attention” of Americans, as Madison put it.

There had been bills of rights in English and American law for centuries, and the men who drafted the American Bill of Rights drew on these precedents. The right to petition (1st Amendment) and to trial by jury (6th Amendment) went back to Magna Carta (1215). The right to bear arms (2nd Amendment) and the prohibition of excessive bail and fines and of cruel and unusual punishments (8th Amendment) appear in the English Bill of Rights (1689). The Virginia Declaration of Rights (1776) enshrined freedom of the press and free exercise of religion (1st Amendment), and forbade arbitrary search warrants (6th Amendment) and compelling anyone to testify against himself (5th Amendment).

But the Bill of Rights added two brand-new provisions. The 9th amendment protects all “other” rights not specifically mentioned in the Constitution, while the 10th amendment “reserves” powers not assigned to the federal government to the states and to the people. These fortify the structural balance of the Constitution itself. They are a warning to the future: just because we haven’t thought of everything doesn’t mean you can grab for power.

Jefferson, as he often did, found just the right words to describe the impact of the Bill of Rights, which in this case came from his experience as an amateur architect: “a brace the more will often keep up the building which would have fallen” without it.

The Bill of Rights is a worthy addition to the great work that was done in Philadelphia in 1787.

Distinguished author and historian Richard Brookhiser is the author of James Madison; America’s First Dynasty about John Adam’s family; Gentleman Revolutionary, about Gouverneur Morris; and Alexander Hamilton, American.

February 21, 2012 – Essay #2

 

Guest Essayist: Dr. Larry P. Arnn, president of Hillsdale College, and author of The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It

http://vimeo.com/37225231
Watch or Listen to Janine Turner Read:

The Amendment Process – Guest Essayist: Dr. Larry P. Arnn,  president of Hillsdale College, and author of The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It

- Guest Essayist: Dr. Larry P. Arnn, president of Hillsdale College, and author of The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It

Only with a large effort can the Constitution of the United States be formally amended.  This was not an accident, but the intention of its framers.

If the Constitution is changed too often and for the wrong reasons, the people of America, the Founders held, will lose reverence for its principles, and respect for its rule.  With reverence lost, they might cease to be a self-governing people.  Tyranny itself could topple liberty.

The Constitution is difficult to amend not because the Founders distrusted the people.  In fact, they trusted the American people more than any other constitution-makers had ever before trusted a people.  They took pride in the fact that no separate or special class of persons would hold any authority under the Constitution.  They created no aristocracy or favored group, and their design did not pit one group of citizens against another.

Instead, they rested all power in the hands of the people.  Then they divided that power so as to encourage fairness and deliberation in their judgments.  It is the “reason alone of the people that must be placed in control of the government,” writes James Madison in Federalist 49.  “Their passions must be controlled by the government.”

Our American regime is the first in which sovereignty lies outside the government—in the people.  The Constitution’s structure in its original form was designed to bring power and restraint together.  The people must come to respect the restraint of the government so that its properly-limited power might be upheld.  The Constitution provides for limited government so that the natural rights of citizens can best be secured.

In this sense, Alexander Hamilton noted that the Constitution itself, even before it was amended, was “a bill of rights.”  Adding the first ten amendments, which the First Congress did in 1791, marked a reaffirmation and an explicit statement of rights held by the people and the states, but all of these are affirmed in the original structure of the Constitution—with its separation of powers, representative form, and limited grant of power to the government.  All of these essential features of good government were stated with unmistakable clarity in the Declaration of Independence.

Today, the Bill of Rights is often confused as the source of American liberties.  In fact, as both Madison and Hamilton knew, it is the Constitution’s structure that provides the surest bulwark of our liberties.  Destroy the structure, and liberty will be lost.  Alter the structure significantly (see the Seventeenth Amendment), and liberty is endangered.

Without reverence for it, the Constitution, like the Bill of Rights that is now part of it, will be but a “parchment barrier.”

Out of the more than 5,000 amendments to the Constitution proposed in Congress since 1789, only 27 have been adopted.  There are two possible ways to amend the Constitution, both of them specified in Article V.  All of the current amendments to the Constitution have been adopted following the first path, wherein votes are required by two thirds of both houses of Congress, followed by a vote of three-fourths of state legislatures.

The other path, to date not used successfully, is the convention method, in which two-thirds of the state legislatures can call a constitutional convention, after which three-fourths of the state legislatures or state conventions must then ratify the proposed amendment or amendments to the Constitution.  Conventions have been avoided probably for good reason, since it is not clear to anyone whether a convention would be bound to changing only one item in the Constitution.  We Americans have been pleased to have only one Constitutional Convention.

The New York Times recently noted that outside of the defunct Yugoslavian constitution, there is no other constitution in the world so hard to amend as ours.  By coupling our Constitution with a failed state, the article seemed to imply that if we don’t get with the times, we will be left behind.  Our country, they quote a justice of Australia’s high court as saying, is becoming a “legal backwater.”

For over a hundred years the Constitution has been assailed as undemocratic, and in need of an overhaul.

Long is the list of books written recently suggesting ways—formal and informal—to make our Constitution better.  When formal amendment efforts fail, informal methods are advanced.  Efforts to informally amend the Constitution—to bring it into better congruity with fashionable legal and political norms of today—can be successful only if citizen reverence for the Constitution is lost.

Dr. Larry P. Arnn is president of Hillsdale College, and author of The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It. Hillsdale’s “Constitution 101,” an online course which features lectures by Dr. Arnn and others, starts today.  For more information on Constitution 101, go to: http://constitution.hillsdale.edu

Click here to watch a reading of this essay!

 

 

Constituting America to launch third annual 90-day Constitutional Forum

Foundation chairman Janine Turner invites citizens to join with historians and scholars in examining Constitution’s 27 amendments and the amendment process

As the nation prepares to mark Presidents Day, the non-profit foundation Constituting America is inviting citizens across the nation to join in its third annual 90-day online forum exploring the U.S. Constitution and its relevance in contemporary lives.

Scheduled to launch on Presidents Day (February 20), the forum available at www.constitutingamerica.org will offer citizens the opportunity to explore in-depth each of the Constitution’s 27 amendments through essays by noted constitutional scholars and historians.

In addition to featuring online essays written by noted scholars, foundation chairman Janine Turner — who will also contribute essays — will read aloud the essays on Ustream. Videos will be available on the Constituting America website (www.constitutingamerica.org) as well as on Vimeo and YouTube.

“It was John Adams who said, ‘Liberty cannot be preserved without a general knowledge among the people,’” said Turner, a celebrated actress and talk radio host. “We hope that through the 90-day Constitutional Forum, the foundation can play a role in helping to educate Americans about the U.S. Constitution and its continued importance today.”

Turner founded Constituting America with Co-Chairman Cathy Gillespie on Presidents Day 2010. “By sponsoring this online Constitutional Forum, we hope to give everyday citizens a chance to really get to know the Constitution and to appreciate how truly relevant it remains in our lives today,” she said.

The Constitutional Forum will begin with an inaugural essay on the amendment process by Dr. Larry Arnn, president of Hillsdale College and author of the recently published book The Founders’ Key: The Divine and Natural Connection between the Declaration and the Constitution and What We Risk by Losing It. Prior to joining Hillsdale College as president in 2000, Dr.Arnn served as president of the Claremont Institute for 15 years. He is also the author of Liberty and Learning: The Evolution of American Education and has been published widely in national newspapers, magazines and periodicals on issues of public policy, history and political theory.

Following Dr. Arnn’s introductory essay, the forum will devote a full week to exploring in-depth the First Amendment and the many freedoms it guarantees. Thereafter, the forum will explore each amendment in turn before concluding by examining several amendments that were proposed but never ratified, including the Equal Rights Amendment and D.C. statehood.

In addition to the 90-day online forum for adults, Constituting America is also launching the third year of its “We the People 9*17” kids’ contest. Open to kids from kindergarten through college and law school, the contest awards prizes and scholarships for creating original songs, short films, public service announcements, speeches, poems, drawings and essays inspired by the U.S. Constitution. Contest winners also receive a trip to Philadelphia for Constitution Day and national exposure through a video and appearances on national talk shows.

For more information on Constituting America’s 90-day Constitutional Forum or the “We the People 9*17 Contest,” visitwww.constitutingamerica.org.

###

To schedule an interview with Janine Turner, contact:

Jennifer Logue

McCauley Logue Communications

(617) 429-3080

jennifer@mccauleylogue.com

 

What do you love about the United States Constitution? Is it the Checks and Balances? Separation of Powers? The Amendment Process? Blog with us below, and let us know!

Coming February 20th! Our 90 Day Study of the Amendments to the United States Constitution! Read, Watch, Listen & Blog with Constitutional Scholars and Constituting America Founder & Co-Chair Janine Turner and Co-Chair Cathy Gillespie!

Study a different Amendment or portion of an an Amendment each night as we walk through the 27 Amendments to the United States Constitution, and the amazing Amendment Process!

Mark your calendar to join us February 20th, and for the next 90 days, right here!

 

 

September 17, 2012 marks the 225th Anniversary of the signing of the United States Constitution!

Ring in the New Year with this Rockin’ Song by Best High School Song Winner, Jacob Wood:

THESEPRECIOUSWORDSv4051711

Click Here for a free download of the song from Constituting America’s Facebook Page! Scroll down to the words: “Free MP3 Song Download for Fans of Constituting America”!

“What the Constitution Means to Me”                                                                          

Vocals by Jacob Wood
Lyrics by the Founding Fathers and Jacob Wood                                               Background Vocals by Janine Turner, Juliette Turner, additional backgrounds by Johnny Marshall
Music Produced by Amin Emam & Johnny Marshall
Music Mixed by Johnny Marshall & Amin Emam
Recorded and Mixed at Marshall Sound Design
Musicians : Jacob Wood, Johnny Marshall, Jamey Perrenot and Neil Swanson

September 17, 2012 marks the 225th Anniversary of the Signing of the United States Constitution!

Make it your New Year’s Resolution to study this magnificent document with Constituting America, your family and friends!  How will you celebrate this landmark year?

Below are some ideas:
Encourage your kids K-Law School to enter our We The People 9.17 Contest and win prizes & national exposure: http://www.constitutingamerica.org/downloads.php
Start a Patriot Club: https://constitutingamerica.org/patriotstart.php
Participate in our Analyzing the Amendments Study, beginning February 20, 2012 on our blog: https://constitutingamerica.org/!
Hold a Public Reading of the Constitution in your community: http://www.wereadtheconstitution.com/

Watch this space for more ideas throughout the year!

Click Here for larger image, or scroll down to view the Constituting America card, with cover by 2011 Best Artwork Winner, Emma Harrison!

Click Here  to read Constituting America Founder & Co-Chair Janine Turner’s latest Washington Examiner Column: Protecting Liberty Means Knowing Your Bill of Rights!

“Living in a time when the Constitution is either ignored or mis-interpreted, we should thank the Anti-Federalist for their perseverance. The clash of the Federalist and Anti-Federalists led to guarantees of liberties that have been envied throughout the world for over two centuries.

Madison, ironically, believed, and rightly so, “Liberty is to faction, what air is to fire.” In this case, the clash of two factions produced an historic result.”

Read more at the Washington Examiner: http://washingtonexaminer.com/opinion/op-eds/2011/12/protecting-liberty-means-knowing-your-bill-rights/2018572#ixzz1hOuudq1q

Dear Friends,

Happy Thanksgiving! We are pleased to share with you the words of our first President, George Washington, in his 1789 Thanksgiving Proclamation! This was the first time Thanksgiving was recognized by the national government in an official proclamation.

We are thankful to you, for your support of, prayers for and encouragement of our shared mission: to utilize the culture and multi-media outreach such as music, film, internet, and social media to reach, educate and inform America’s adults and students about the importance of the U.S. Constitution and the foundation it sets forth regarding our freedoms and rights.

We hope you enjoy reading the wise words of our first President, and Father of our Country!

Blessings to you and your family,

Janine & Cathy

http://gwpapers.virginia.edu/documents/thanksgiving/transcript.html

New York, 3 October 1789]

By the President of the United States of America. a Proclamation.

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor–and whereas both Houses of Congress have by their joint Committee requested me “to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.”

Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be–That we may then all unite in rendering unto him our sincere and humble thanks–for his kind care and protection of the People of this Country previous to their becoming a Nation–for the signal and manifold mercies, and the favorable interpositions of his Providence which we experienced in thecourse and conclusion of the late war–for the great degree of tranquillity, union, and plenty, which we have since enjoyed–for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted–for the civil and religious liberty with which we are blessed; and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.

And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions–to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually–to render our national government a blessing to all the people, by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed–to protect and guide all Sovereigns and Nations (especially such as have shewn kindness onto us) and to bless them with good government, peace, and concord–To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and us–and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.

Given under my hand at the City of New-York the third day of October in the year of our Lord 1789.

Go: Washington

DS, CStbKML; DS, DLC:GW; copy, sold by Christie, Manson, & Woods, International, 21 Oct. 1977. The proclamation was also printed as a broadside. Copies of the broadside are at Harvard University, Yale University, and the Pierpont Morgan Library. Other copies are owned (1992) by Marshall B. Coyne, Washington, D.C., and Ralph Geoffrey Newman, Inc., Chicago. Reprinted in The Papers of George Washington, Presidential Series, v. 4, September 1789-January 1790. (Charlottesville and London: University Press of Virginia, 1993), 131-32.

For background to this document, see Circular Letter to the Governors of the States, 3 Oct. 1789, n.1.


Read more about the background of President Washington’s Thanksgiving Proclamation here: http://gwpapers.virginia.edu/documents/thanksgiving/intro.html

MUST SEE!! Constituting America’s Best Middle School Song Winner, Emily Keener, performs on Huckabee – and Constituting America Founder and Co-Chair Janine Turner Joins in the Fun from Texas!

Horace Cooper, Senior Fellow with the Heartland Institute, visits with Janine Turner on the Janine Turner Radio Show, Saturday, September 3 on DFW’s KLIF.  Listen as they discuss Professor Joe Postell’s (University of Colorado at Colorado Springs) essay on Article I, Section 3, Clause 2 found in Constituting America’s Analyzing the Constitution project at this link: https://constitutingamerica.org/?p=732

Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College and author of our “90 in 90” Article I, Section 3, Clause 1 Essay, visits with Janine Turner on the Janine Turner Radio Show, Saturday, August 27 on DFW’s KLIF.

Read Professor Morrisey’s essay here: https://constitutingamerica.org/?p=728.

Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College and author of our “90 in 90” Article I, Section 2, Clause 5 Essay, visits with Janine Turner on the Janine Turner Radio Show, Saturday, August 20 on DFW’s KLIF.

Read Professor Morrisey’s essay here: https://constitutingamerica.org/?p=728.

William C. Duncan, Director of the Marriage Law Foundationand author of our “90 in 90” Article I, Section 2, Clause 4 essay, visits with Janine Turner on the Janine Turner Radio Show, on Saturday, August 13, on DFW’s KLIF!

Read Mr. Duncan’s essay here: https://constitutingamerica.org/?p=723

Interview with Janine Turner on the Janine Turner Radio Show

W. B. Allen, Dean Emeritus James Madison College, Emeritus Professor of Political Science, Michigan State University, and author of our “90 in 90” Article I, Section 2, Clause 3 Essay, visits with Janine Turner on the Janine Turner Radio Show, on Saturday, August 6, on DFW’s KLIF!

Listen as they discuss Professor Allen’s essay on Article I, Section 2, Clause 3 found in Constituting America’s Analyzing the Constitution project at this link:

https://constitutingamerica.org/?p=719

Listen to Dr. Allen’s brilliant analysis of this often misunderstood clause of the U.S. Constitution!

Interview with Janine Turner on the Janine Turner Radio Show

Horace Cooper, Senior Fellow with the Heartland Institute, and author of our “90 in 90” Article I, Section 2, Clause 1-2 Essay, visits with Janine Turner on the Janine Turner Radio Show, Saturday, July 30 on DFW’s KLIF.  Listen as they discuss Mr. Cooper’s essay on Article I, Section 2, Clause 1-2 found in Constituting America’s Analyzing the Constitution project at this link:

https://constitutingamerica.org/?p=714

Listen to Horace’s analysis of an important detail that was not addressed when the 17th Amendment was passed!

Article I, Section 2, Clause 1-2 of the United States Constitution

https://constitutingamerica.org/?p=714

Interview with Janine Turner on the Janine Turner Radio Show

Dr. Charles Rowley, Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute, and author of our “90 in 90” Article I, Section I Essay, visits with Janine Turner on the Janine Turner Radio Show, Saturday, July 23 on DFW’s KLIF.  Listen as they discuss Dr. Rowley’s essay on Article I, Section 1, found in Constituting America’s Analyzing the Constitution project at this link: https://constitutingamerica.org/?p=712

Which branch of the government was intended by the founders to be the most powerful? Listen to Dr. Rowley’s interview and find out!

Interview with Janine Turner on the Janine Turner Radio Show

Dr. David Bobb, Director and Lecturer in Politics, Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship
Hillsdale College visits with Janine Turner on the Janine Turner Radio Show, Saturday, July 16th on DFW’s KLIF.  Listen as they discuss Dr. Bobb’s essay on the Preamble to the United States Constitution,  found in Constituting America’s Analyzing the Constitution Project at this link: https://constitutingamerica.org/?p=703

Constituting America Presents

Analyzing the Constitution

A 90 in 90 Day Forum

 

What an amazing journey! Ninety days on Constitutional studies initiated, executed and now archived on Constituting America.org! I want to thank all of the distinguished men and women who wrote essays for our forum and those who joined our blog. You brought awareness and clarity to our United States Constitution and reinforced its profundity. Your dedication to the document adds dignity to not only our country, but our cause.

It is immensely imperative that Americans both young and old introduce themselves and/or re-introduce themselves to our great American heritage and founding principles. Our United States Constitution took a confederacy of vast and varying states to a union of vision, inspiration and hope. The cobblestones that were laid with the Revolutionary War were sealed with the cement of the Constitution.  It was and is the standard from which a government, “of the people, by the people and for the people” shall never perish – as long as we seek its wisdom, respect its reason and value its principles.

As long as our words to “preserve, protect and defend the United States Constitution” fall on true intentions and knowledge of its purpose, our Republic – our freedoms and our blessing to seek life, liberty and the pursuit of happiness – will remain.  If we forget, falter or forge its meaning – our country will perish. Mission critical is the call of our heritage. We must inspire and educate one another to commence and treasure civic duty, for it is, “We the People,” who will carry the torch of freedom to our posterity.

Janine Turner

Founder and Co-Chair of Constituting America

http://www.constitutingamerica.org

Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute

Amendment XXVII

 

No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.

Congress is required by Article I, section 6 of the Constitution to determine its own pay.  Prior to 1969, Congress did so by enacting stand-alone legislation.  From 1789 through 1968, Congress raised its pay 22 times using this procedure.  Initially members were paid per diem.  The first annual salaries, in 1815, were $1,500.  By 1968, pay had risen to $30,000.  Since 1969 two other methods may also be used to increase the pay of members: automatic annual adjustments and a commission process.  By 2009, the annual salary of Congressmen and Senators had risen to $174,000.  So, even allowing for inflation, Congress has not demurred in paying itself well. The issue of constitutional constraints over the effecting of pay increases, therefore, is no minor matter.

The Twenty-seventh Amendment prohibits any law that changes – increasing or decreasing – the salary of members of the United States Congress from taking effect until the next two-year term of office for the Representatives.  This allows members of Congress to reflect on potential voter rage before dipping into the pockets of their taxpayer-electors.  It is the most recent amendment to the United States Constitution, ratified in 1992, just shy of 203 years after its initial submission in 1789.

The long history behind the Twenty-seventh Amendment is curious and unprecedented.  Its origins lie in very early suggestions from two founding states.  During the 1788 North Carolina and Virginia Conventions – called to consider the original Constitution that emerged from Philadelphia – wordings almost identical to those ratified in 1992 were requested of Congress.

Representative James Madison presented this proposed amendment to the House of Representatives in 1789.  It became the second of the twelve Constitutional amendments originally submitted by the 1st United States Congress for ratification by the states on September 25, 1789.  The last 10 of these would be ratified as the so-called Bill of Rights by December 15, 1791.

The proposed compensation amendment did not fare well in the hands of the states.  Between 1789 and 1791, it was ratified by the legislatures of only six states – Delaware, Maryland, North Carolina, South Carolina, Vermont and Virginia – out of the ten states then required by the Constitution.  As more states entered into the union, so the ratification threshold slowly increased under the three-quarters rule.  The proposed amendment was then largely ignored for the better part of a century.

Ohio was the only additional state to approve the amendment over that time-period, when its General Assembly voted in favor in 1873.  This ratification vote was a method of protesting the so-called Salary Grab Act of that year, providing not only for a substantial Congressional pay raise, but making that pay raise retroactive.  Almost another century would then pass until the proposed amendment was ratified by Wyoming in 1978, once again as a protest against another outrageous Congressional pay increase.  The numbers required for ratification, however, remained painfully short of those required.

Young students following this invaluable educational program should be interested to note that the issue was brought to the attention of the public once again by a person very like you.  In 1982, Gregory Watson, a twenty-year-old undergraduate at the University of Texas at Austin, wrote a term paper arguing the case for ratifying the amendment.  For this contribution, Watson received a ‘C’ grade from his professor.  Note that a ‘C’ grade in 1982, prior to the grade inflation that would follow, was an entirely respectable, though not a spectacular, evaluation.

Undeterred by this modest grade, Watson embarked on a one-man campaign for the amendment’s ratification.  From his home in Austin, he wrote letters to state legislators across the country, typing each one out separately on an electric typewriter.  Fortuitously his missives arrived on the desks of elected representatives, many of whom were confronting voter rage about their own budget-busting pay increases.  As symbolic gestures, primarily to immunize themselves from such voter alienation, state legislatures began to ratify the amendment, rationally calculating that the requisite threshold of thirty-eight states would never be achieved.

Their expectations turned out to be misplaced.  The tally of ratifying states began to rise.  Maine signed off first (1983), followed by Colorado (1984).  Then the ratifications began to flood, as the dam burst its banks.  Five states followed in 1985, three more in 1986, four more in 1987, three more in 1988, seven in 1989, and two in 1990.  Now the amendment was close, and the numbers slowed, as ratification became a real possibility.  North Dakota slipped across the line in 1991, apparently as the 35th state to ratify.  Under the close scrutiny of a watchful public, Alabama and Missouri surrendered on May 5, 1992.  Michigan broke the log-jam two days later, apparently providing the crucial 38th vote.

It would later be discovered that the Kentucky General Assembly had actually ratified all twelve amendments during that state’s initial month of statehood, making Missouri the 38th state to ratify.  The official record of the federal government, nevertheless, still recognizes Michigan as the 38th state to ratify.

Because the Twenty-seventh amendment had taken more than 202 years to ratify, a few self-seeking members of Congress challenged its validity.  Under the U.S. Supreme Court’s landmark decision in Coleman v. Miller, 307 U.S. 433 (1939), any proposed amendment that has been submitted to the states for ratification and that does not specify a ratification deadline may be ratified by the states at any time.  In Coleman, the Supreme Court further ruled that the ratification of a constitutional amendment is political in nature.  It cannot be assigned to the judiciary for oversight.

On May 18, 1992, the Twenty-seventh amendment was officially certified by Archivist of the United States, Don W. Wilson.  On May 19, 1992, it was printed in the Federal Register, together with the certificate of ratification.  In so doing, the Archivist had acted under statutory authority granted to his office by the Congress under Title 1, section 106b of the United States Code.

Immediately, Tom Foley (Democrat), Speaker of the House of Representatives, called for a legal challenge and Senator Robert Byrd (Democrat) of West Virginia scolded Wilson for certifying the amendment without waiting for Congress to scrutinize its validity.  The Archivist held his ground and on May 20, 1992, under the authority recognized in Coleman, and in keeping with the precedent first established regarding ratification of the Fourteenth Amendment, each house of the 102nd Congress passed a version of a concurrent resolution agreeing that the amendment was validly ratified despite the 202 years that it had taken.  Interestingly, the two versions of the resolution were never reconciled by the entire Congress.

From the perspective of public choice, difficulties in ratifying the Twenty-seventh amendment are understandable. The Federalists recognized from the outset the existence of a fundamental problem that over-shadows any constitutional or compound republic: who guards the guardians?  It is an evident fact of life that $100 bills are rarely left lying on the sidewalk.  If the representatives of the people can vote moneys into their own pockets without penalty, the expectation is that they will gladly so do.

What is true for the federal goose is equally true for the state gander.  So state politicians, called upon to constrain their federal counterparts, unless hard-pressed by their own voters, will not willingly put a money-bags constraint around necks that quickly might metamorphose into their own.  The more highly remunerated a state’s legislators are, the less likely they are to vote the federal ratification into law.  Massachusetts, New York and Pennsylvania have not ratified the Twenty-seventh amendment.  We do not need to strain our little grey cells to understand why this is so!

Even with the Twenty-seventh amendment in place, politicians find wiggle room around it in the form of annual cost-of-living adjustments (COLAs).  COLAs have been upheld against legal challenges based on the Twenty-seventh amendment.  In Boehner v Anderson 30 F.3d 156 (D.C. Cir, 1994) the United States Court of Appeals for the District of Columbia Circuit ruled that the Twenty-seventh amendment does not impact on annual COLAs.  In Schaffer v. Clinton 240 F.3d.876 (10th Cir. 2001) the United States Court of Appeals for the Tenth Circuit ruled that receiving such a COLA does not grant members of Congress standing in federal court to challenge that COLA.  The Supreme Court refused to grant certiorari in either case, and so has never ruled on those legal precedents.

Why should it not surprise us that the federal courts are turning a blind eye to Congressional maneuvers around the Twenty-seventh amendment?  Once again, public choice saves us from straining those little grey cells.  Federal salaries are related directly to Congressional salaries, by Congressional legislation.  It is a rare judge or justice who is prepared to challenge a maneuver that puts money directly into his or her own pocket.

The Founders strove mightily to protect the People from the potential predations of their own representatives.  Ultimately, however, only the People can protect themselves by exercising eternal vigilance at the ballot box over the behavior of the agents that they dispatch to and from Washington.

It is surely appropriate that those who guard the guardians should be the People in whose interest the Founders crafted such a beautiful Constitution, designed to protect their lives, liberties, and properties, and to allow them to engage in the pursuit of happiness as they individually define that glorious goal.

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia.  He is author of Liberty and the State (The Locke Institute 1993), co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government (The Locke Institute 2009) and the author of Never Let A Good Crisis Go To Waste (The Locke Institute 2010). All books are available at www.amazon.com. See also www.thelockeinstitute.org and www.charlesrowley.wordpress.com.

As we come to the end of our 90 Day Journey Analyzing the United States Constitution, I want to join Constituting America Founder and Co-Chair Janine Turner in thanking all those who made this study possible.  We thank our talented and generous constitutional scholars who participated:

David Addington
Vice President for Domestic and Economic Policy
The Heritage Foundation

Steven H. Aden, Esq.
Senior Counsel
Alliance Defense Fund

Prof. Bill Allen
Michigan State University

John S. Baker
Professor of Law Emeritus
Louisiana State University Law School

Andrew Baskin, Attorney
Director of Education & Volunteers
The Constitutional Sources Project

James D. Best
Author of Tempest At Dawn 

David J. Bobb, Ph.D.
Director and Lecturer in Politics
Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship
Hillsdale College

Justin Butterfield
Constitutional Attorney, Liberty Institute

Robert Chapman-Smith
Instructional Design Associate, Bill of Rights Institute 

Horace Cooper
Legal Commentator and a Senior Fellow with the Heartland Institute 

Carol Crossed
Owner and President
Susan B. Anthony Birthplace Museum

Cynthia Dunbar
Asst. Prof. of Law
Liberty University School of Law

William Duncan
Director, Marriage Law Foundation

Scot Faulkner
Executive Director
The Dreyfuss Initiative

Colin Hanna
President, Let Freedom Ring

Allison Hayward
Vice President of Policy, Center for Competitive Politics 

Hadley Heath
Senior Policy Analyst, Independent Women’s Forum

Scot Faulkner
Executive Director
The Dreyfuss Initiative

Troy Kickler
Founding Director of the North Carolina History Project

Joerg W. Knipprath
Professor of Law, Southwestern Law School

David B. Kopel
Research Director, Advanced Constitutional Law
Denver University, Sturm College of Law

Marc Lampkin
Quinn Gillespie and Associates

Andrew Langer
President
The Institute for Liberty

Gary McCaleb
Senior Counsel
Alliance Defense Fund

Dan Morenoff
Attorney

Prof. Will Morrisey
Hillsdale College

Joe Postell
Assistant Professor of Political Science, University of Colorado – Colorado Springs

Jeff Reed
Former Constitutional Law Professor, Western Kentucky University in Bowling Green, Kentucky 

Professor Charles Rice
Professor Emeritus of Law at the University of Notre Dame

Judge Jim Rogan
Superior Court of California 

Tara Ross
Author, Enlightened Democracy: The Case for the Electoral College

Dr. Charles K. Rowley
Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute

George Schrader
Student of Political Science, Hillsdale College

Prof. Kyle Scott
Department of Political Science
University of Houston

Mr. Kelly Shackelford
President and CEO of Liberty Institute

Julia Shaw
Research Associate and Program Manager
B. Kenneth Simon Center for American Studies

Larry Spiwak
Lawrence J. Spiwak
President, Phoenix Center for Advanced Legal & Economic Public Policy Studies

W. David Stedman
Editor, Our Ageless Constitution

Nathaniel Stewart
Attorney

Paul S. Teller, Ph.D.
Executive Director of the Republican Study Committee in the U.S. House of Representatives

Kevin Theriot
Senior Counsel, Alliance Defense Fund

And we thank our hardworking and dedicated project director and coordinator, who spent many late nights posting essays, and organizing the various contributions:  Horace Cooper and Amanda Hughes

We thank those of you who have read these essays and joined in the discussion, blogging your thoughts!  We invite you to spread the word and let your friends, civic groups, and personal network know about the resources that exist on the pages of Constituting America! We invite more to join our Constitutional dialogue! 

A special thank you goes to Constituting America National Youth Director, Juliette Turner, who has tirelessly interpreted these erudite essays for kids (and adults like me who need the extra help sometimes in understanding!), crafting each into “Constitutional Fun Facts”!   Please check out Juliette’s Blog for Kids at: http://www.constitutingamerica.org/juliette/

But most of all, I would like to thank Constituting America Founder and Co-Chair Janine Turner who had the creative vision for this project, and whose daily energy and enthusiasm drives Constituting America! 

What an undertaking to spend 90 Days studying this brilliant document, section by section, amendment by amendment, and at times clause by clause.  But yet, study we must. To protect our rights and our liberties, we must first know them, and understand them.

The Constitution of the United States of America is the world’s longest surviving written charter of government.  This miracle, a product of the brilliant minds of our founding fathers, rooted in their study of government, knowledge of history, and profound understanding of the nature of man, has survived because “we the people,” have cared enough for it to survive. 

For 224 years, each generation of Americans has passed this torch of knowledge and liberty to the next.  John Adams gave us this charge: “Children should be educated and instructed in the principles of freedom.” But how can we instruct our children if we aren’t educated ourselves?

The mission of Constituting America is to help our generation pass the torch to the next, in ways that new generations of Americans can relate to, engage with, and understand! We thank you for joining us in this mission, and for your enthusiastic participation! 

Sincerely,

Cathy Gillespie
Co-Chair, Constituting America

 

 

 

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Amendment XXVI

1:  The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

2:  The Congress shall have the power to enforce this article by appropriate legislation.

The final (or, more accurately, most recent) amendment to the US Constitution is the 26th.  It lowered the national voting age from 21 to 18 years of age.

The founders initially left it up to the several states to determine various eligibility requirements for voting.  But following nearly a century of reform, including the passage of the 19th Amendment ensuring suffrage for women and various civil rights laws operating under the auspices of the 14th amendment, national leaders began to grapple with pressure to lower the overall voting age nationally from the generally-accepted 21 to 18.

President Eisenhower was the first chief executive to publicly support such a move, but Congress’ attempts to nationally require states to do so were met with constitutional opposition from the Supreme Court.  The High Court found that Congress had exceeded its authority under the Constitution, and that amending the Constitution would be required.

Contrary to popular belief, it wasn’t simply the anti-war movement that was pressuring national leaders to lower the voting age.  Young adults from all walks of life, who had already assumed the full mantle of adulthood (marriage, children, sole self-support, etc), were eager to ensure that they had a voice in public policy.  But it was the anti-war movement that captured the popular sentiment, with the concept that “if I’m old enough to be drafted to fight for my country, I ought to be able to vote those policies facing my country.”

The issue of the draft isn’t a small one, either.  The fact that young men were facing the possibility of involuntarily putting themselves in harm’s way is a compelling justification for allowing these same young men a voice in their own futures.

By 1971, the White House had become a champion of the push to lower the voting age as well—which, given the ire the anti-war movement felt towards the Nixon administration, was nothing short of ironic.  In fact, in one of the oddest instances of changing places, The New York Times, incapable of seeing anything good coming from the Nixon White House, came out in opposition to the lowered voting age—stating that young people were simply too immature intellectually to be good voters.

But the proposed amendment did pass Congress, and Nixon signed it in March of 1971. The amendment rocketed through state legislatures, and by July 1 it had been ratified.

The force and effect, however, has been somewhat limited.  Rates of voting for the 18-21 year old segment of the population was at its highest for the 1972 election.  After that, even considering important contributions in the 1984, 1996, and 2008 Presidential elections, voter turnout among this demographic has remained tremendously low.  Despite this fact, there are some calling for lowering the voting age even more—to 16![1]

It is doubtful that this will happen, given a host of factors—including one trend that has run parallel through the 40 year history of the under-21 vote.

While there may have been some justification in the late-1960s and early-1970s for lowering the age due to the factors facing a disenfranchised segment of the population, those factors have continued to shift.  Not only do we have an all-volunteer military, wherein nobody is forced to join without their own-free choice, but the age we consider “adult” today continues to increase.

Currently, for instance, we have the greatest percentage of individuals under 30 living in their parents’ homes.  Few have families, fewer own homes.  It has become acceptable to consider adolescence to extend well-beyond age 18, and some believe it to extend beyond 30 years of age!

This belief became enshrined now in federal public policy as well.  One of the central issues in Obamacare is the mandate to health insurance companies that they allow parents to put their children on their insurance plans up to the age of 26.  I believe such a consideration would have been unthinkable in the era when the 26th Amendment was being considered.

Nobody is suggesting that the voting age be raised again—though many believe that young people do squander their franchise rights.  What is certain is that the 26th Amendment is illustrative of the idea that pressing issues of the day ought not drive the amendment process.  Rarely does such tinkering with the founders’ vision produce the results that we want.


[1] This organization, the American Youth Rights Association, believes that voter turnout will increase, and that because young people may retain better knowledge of historical facts than the general population, that they will be a more informed segment of the voting electorate.

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XXV

1: In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

2: Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

3: Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

4: Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

 

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

The 25th Amendment, ratified in 1967, answers open questions about presidential succession.

What happens when the president dies in office?

Under Article II, if the president is removed, dies, resigns or is unable to perform his duties, these duties fall to the vice president (section 1, clause 6). Alexander Hamilton said a vice president “may occasionally become a substitute for the president” (Federalist 68). While this seems clear, the exact status of the vice president when taking on the president’s duties or acting as a “substitute” was not certain. When William Henry Harrison died of pneumonia in 1841, Vice President John Tyler insisted on becoming the president rather than just an “acting president” as some urged. See Mark O. Hatfield, Vice Presidents of the United States, 1789-1993 (1997) at http://www.senate.gov/artandhistory/history/resources/pdf/john_tyler.pdf. All eight of the vice presidents who assumed the presidency on the death of the president followed this precedent.  Section One of the 25th Amendment formalized the precedent, specifying that if the president is removed, dies or resigns “the Vice President shall become President.”

What happens if there is a vacancy in the vice presidency?

The eight times a president died in office and the vice president became president there was a vacancy in the vice presidency, as occurred also when seven vice presidents died in office and two resigned. See John D. Feerick, “Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment” 79 Fordham Law Review 907, 943-944 (2010). The Congressional Research Service notes, “for some twenty percent of United States history there had been no Vice President to step up.” CRS Annotated Constitution, “Twenty-fifth Amendment” at http://www.gpoaccess.gov/constitution/pdf2002/043.pdf.  Section Two of the 25th Amendment provides the solution for these instances by allowing the president to nominate individuals to fill vacancies in the vice presidency. The person nominated can take office when a majority of the House and Senate confirmed the nomination. Gerald Ford (in 1973) and Nelson Rockefeller (in 1974) became vice presidents following this procedure.

What happens if the president knows he or she cannot fulfill the duties of the presidency?

The Constitution did not specify the procedure to follow in the case of a president being incapacitated. If the president knows of the incapacitation beforehand, as in a planned medical procedure, section Three of the 25th Amendment allows the president to notify the President pro tempore of the Senate and Speaker of the House that the Vice President will be Acting President during a period when the president cannot fulfill the duties of that office. When ready to resume the duties, the president notifies these same officials. President George W. Bush invoked this portion of the Amendment twice for routine medical procedures.

What happens when the president is incapacitated but cannot or will not step aside and let the vice president act as president?

Before his death by assassination, President James A. Garfield lived in a coma for eighty days. President Woodrow Wilson had a debilitating stroke a year and a half before the end of his final term. President Dwight D. Eisenhower experienced a heart attack and stroke while in office. See Calvin Bellamy, “Presidential Disability: The Twenty-Fifth Amendment Still an Untried Tool” 9 Boston University Public Interest Law Journal 373, 376-377 (2000). Until, the ratification of section four of the 25th Amendment there was no Constitutional direction for handling situations where the president could not function and could not or would not step aside. Now, the vice president “and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide” can notify legislative leaders of the president’s inability to fulfill the duties of the office and the vice president then begins acting as president. The president can resume office by notifying the legislative leaders that there is no inability. When the vice president (and the executive officials) disagree with the president about the president’s capacity and send dueling declarations to Congress, Congress decides the issue. Specifically, if 2/3 of members of Congress agree that the president is incapacitated, the vice president acts in the president’s stead, otherwise the president continues to function (and White House meetings are, no doubt, chilly).

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment XXIV

1:  The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

2:  The Congress shall have power to enforce this article by appropriate legislation.

A poll tax is an ancient device to collect money. It is a tax on persons rather than property or activity. As a regressive tax from the standpoint of wealth, it is often unpopular if the amount at issue is steep. But it can also be unpopular for other reasons.

In the United States, such a capitation tax was assessed in many states on the privilege of voting. Amounts and methods varied. One of the last poll taxes of this type, that of Virginia, was just $1.50 per person at the time it was struck down by the Supreme Court in 1966. That is not more than $10.00 in current money, hardly an exorbitant price, except for the truly destitute. But the problem was more than the amount. It was the manner of administration.

The common practice was to require that the tax be paid at each election, and that a potential voter demonstrate that he had paid the tax for a specified number of previous elections. If not, those arrearages had to be paid to register to vote in the ongoing election. The effect of the tax was to hit many lower income groups, but primarily Southern blacks, whose participation in elections dropped to less than 5% during the first part of the 20th century. To be sure, that low rate of participation was not entirely due to the poll tax, but that tax was a particular manifestation of a regime of suppression of political participation by blacks.

The 15th Amendment had been adopted to prohibit overt racial discrimination in qualifying to vote. However, the poll tax and other restrictive measures, such as literacy tests, were not, strictly speaking, race-based, so they did not come within the 15th Amendment. A different solution was needed, according to those who saw the poll tax as intolerable. Literacy tests, if fairly administered (though often they were not), had a clear connection to the responsible exercise of the voting franchise that poll taxes lacked. After all, especially in those years before the electronic media, having a literate electorate was a significant community interest. Republican theory has traditionally looked to having those with the most interest and highest stake take the leading role in the community. Literacy provided a foundation to acquire the knowledge needed for a wise and effective participation in res publica. Poll taxes, on the other hand, are just revenue-raising devices, and, since they are applied equally per capita, they are removed from republican considerations of having those with the highest economic stake in society direct the political affairs of that society.

Opposition to the poll tax increased during the 1930s and President Roosevelt briefly attacked it in 1938. But FDR had to be mindful of the powerful influence of Southern Democratic barons in the Senate and the crucial role that the Southern states played in the politically dominant Democratic coalition. By the 1940s, the House of Representatives passed legislation to outlaw poll taxes but a Southern-led filibuster in the Senate killed the effort. By 1944, the Republican Party platform and President Roosevelt (though not his party’s platform) called for the tax’s abolition.

Eventually, qualms arose about using ordinary legislation to block the tax. Article I of the Constitution places principal control over voter qualification in the hands of the states. The 15th Amendment (race) and the 19th Amendment (sex) had limited the states’ discretion. To many—even opponents of the poll tax—the message from those amendments was that limitations on state power had to proceed through specific constitutional amendment. The opinions issued by the Supreme Court seemed to echo those sentiments, as the Court had accepted the predominant role of the states in that area even when it struck down the racially-discriminatory “white primaries” in the South in the 1940s and 1950s. The debate allowed Southern supporters of the poll tax to characterize the controversy as a states’ rights issue.

The effort to adopt a constitutional amendment to ban poll taxes dragged on through the 1950s into the 1960s, even as support for the tax grew weaker. Literacy tests remained widespread, even in the North. But Southern states, too, abandoned poll taxes until, in 1960, only 5 states retained them. Finally, in March, 1962, the Senate approved what would become the 24th Amendment. This time, no Southern filibuster occurred. In August of that year, the House concurred. The concerns over state sovereignty remained, in that the amendment proposed to abolish poll taxes only in federal elections, leaving states and municipalities free to continue the practice for their internal affairs.

When the amendment was sent out to the states, every state of the old Confederacy, but two, refused to participate, still portraying the matter as a states’ rights issue. The two exceptions were Mississippi, which formally rejected the amendment, and Tennessee, which approved it. Outside the South, every state adopted the amendment between November, 1962, and March, 1964, except Arizona and Wyoming.

But, as mentioned, states were still free to adopt poll taxes for local elections. This apparently was a call to action for the Supreme Court. Casting constitutional caution to the wind, the Court in Harper v. Virginia Board of Elections in 1966 struck down the Virginia poll tax for state and local elections. Creating an odd alloy of different constitutional concepts, due process and equal protection, Justice William Douglas announced for the majority that poll taxes impermissibly discriminated on the basis of wealth and/or improperly burdened a fundamental right to vote. In any event, the opinion announced, the Virginia tax violated the 14th Amendment.

The Court obviously was aware of the 24th Amendment, so recently adopted. But the learned justices must have found the effort to amend the Constitution through the proper Article V process unsatisfying. It appears that the 24th Amendment, having been limited to federal elections to avoid further intrusion into state sovereignty over voting qualifications, was not constitutionally rigorous enough. The Constitution, as it thus stood, was unconstitutional in the eyes of the Supreme Solomons. If the Court was right in Harper, members of Congress and of the state legislatures could have saved themselves much trouble and just used the 14th Amendment to declare all poll taxes unconstitutional. Congress could have accomplished the goals of the 24th Amendment, and more, just by passing a law to enforce these supposed rights protected under the 14th Amendment.

Of course, traditionally the 14th Amendment was not understood to provide direct restrictions on state control of voting qualifications. Otherwise, the 15th Amendment, as it applies to states, would have been unnecessary. The Court had used the 15th Amendment to strike down certain voting restrictions on race earlier in the 20th century, and did not even begin to take gingerly steps towards the 14th Amendment until striking down the “white primaries.”

Not much significance, other than as a symbol and a constitutional curiosity remains of Harper. The Court since then has repudiated the notion of wealth as a constitutionally “suspect” classification entitled to strict judicial scrutiny under the equal protection clause. As well, the notion of voting as a fundamental right protected under the due process clause, has had a checkered history.

Rights conceptually are “fundamental” if they do not depend on a political system for their existence; they are “pre-political” in the sense of the Anglo-American social contract construct that the Framers accepted. Freedom of speech and the right to carry arms for self-defense come to mind. Voting is an inherently political concept that does not exist outside a political commonwealth, and the scope of the voting privilege (that is the meaning of “franchise”) is, necessarily, a political accommodation. Even republics, never mind monarchies, have no uniform understanding of who may be qualified to vote. The great historical variety of arrangements of republican forms of government, and the inherently political nature of defining them, is one reason the Supreme Court has not officially involved itself in defining what is a republican form of government guaranteed under the Constitution.

A final word about the 24th Amendment: Historically, many republics, including the states in our system, required voters to meet designated property qualifications, as a reflection of having a sufficient stake in the community to vote responsibly (and to pay for the cost of government). Strictly speaking, the 24th Amendment does not forbid those. The Supreme Court has upheld property qualifications for voting for special governmental units, such as water districts. One wonders, whether the abolition of such qualifications, if they were required in all elections, would need a constitutional amendment today, or whether the Supreme Court would just wave the magic wand of the 14th Amendment, as it did in Harper.

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

Guest Essayist: Horace Cooper, legal commentator and a senior fellow with The Heartland Institute

Amendment XXIII

1:  The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct:   A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

2:  The Congress shall have power to enforce this article by appropriate legislation.

Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

 

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State…….

While many Americans – including many in Washington, D.C. – may not be aware, the Founders originally contemplated that Congress would be the primary authority over any and all aspects of the nation’s capital and not the residents themselves.

The 23rd Amendment changed the U.S. Constitution to allow residents of the District of Columbia to vote in Presidential elections.  Before the passage of this amendment, residents of Washington, D.C. were unable to vote for President or Vice President as the District is not a U.S. state. They are still unable to send voting Representatives or Senators to Congress.

Operating under the auspices of Article I, Section 8, Clause 17 [[The Congress shall have Power] To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States.] the Congress has nearly Carte Blanche to set up rules for the operation of the capital city.

The 23rd amendment places specific limits on Congress’ authority by its expressed grant of voting rights to DC residents.  However the grant is not unlimited.  It restricts the district to the number of electors of the least populous state, irrespective of its own population. As of 2010, that is Wyoming with three Electors.

The 23rd Amendment does not change the status of DC.  The language clearly establishes that D.C. is not a state and that its electors are only for Presidential elections. The House Report accompanying the passage of the Amendment in 1960 expressly states that the Amendment would not change the status or powers of the District:

[This] . . . amendment would change the Constitution only to the minimum extent necessary to give the District appropriate participation in national elections. It would not make the District of Columbia a State. It would not give the District of Columbia any other attributes of a State or change the constitutional powers of the Congress to legislate with respect to the District of Columbia and to prescribe its form of government. . . . It would, however, perpetuate recognition of the unique status of the District as the seat of Federal Government under the exclusive legislative control of Congress.

History shows that the government of the city of Washington and the District of Columbia have been dominated by Congress for most of the district’s history.   The Congress has expanded and restricted the franchise several times since the District’s creation.  In the 1820s Congress acted to let DC citizens vote for a Mayor and City Council.  After the Civil War changed course and created a territorial form of government for the district. All the officials, including a legislative assembly, were appointed by the president. This system was abandoned in 1874, when Congress reestablished direct control over the city government. From the 1870s forward until 1961 District residents had no rights to vote whatsoever.

The 23rd Amendment opened the door at the Presidential level and in recent years  Congress would expand the franchise further.  First, Congress allowed DC residents to elect a School Board. In 1970, DC citizens gained a nonvoting delegate to the House of Representatives.

By 1973, Congress would pass the Home Rule Act which District residents approved in a special referendum in 1974.  This act allows citizens to elect a Mayor and City Council.

This is the present system operating in Washington, DC today.

Horace Cooper is a senior fellow with the Heartland Institute

Guest Essayist: Marc. S. Lampkin, a Vice President at Quinn Gillespie

Amendment XXII

1: No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

2: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

“No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

The 22nd Amendment was ratified on February 27, 1951.  It places terms limits on the office of the President and provides that no US President can be elected to more than two terms. It also limits the maximum time a President may serve to 10 years, if one should succeed to the office.

The issue wasn’t new – in fact the founders had specifically considered this issue.  Proposed language limiting the number of terms our elected officials could serve was rejected three times during the Constitutional Convention. The Founding Fathers saw no reason why an effective and popular elected official should be arbitrarily forced out of office. On the contrary, the Founders thought that short terms of office — interrupted by frequent elections — would better ensure accountability than limited terms, which is why members of the House of Representatives, the branch designed to be the closest to “the people,” have to run for re-election every two years.

However at the same time instead of using a rule in the Constitution – America had the Washington precedent.  At the founding of the United States government, a clear and consistent pattern had been created by Washington – Presidents served only for two terms.   Consistent with the idea that the American president was a monarch President George Washington made clear that he had no intention of running for a third term in 1796.  This pattern stayed intact for nearly 150 years and then Franklin Delano Roosevelt was elected President.

He was first elected President in 1932, and re-elected in 1936.  The eight years that followed his first election saw the dramatic expansion of the federal government as part of his administration’s response to the Great Depression.  Although the economy had not been revitalized by 1940, many Americans – particularly Democrats – were quite impressed with the leadership he showed in transitioning the federal government from a government of limited powers to one with far more ambitious goals.  From creating a federal minimum wage and a host of public works programs to expanding federal regulation of business generally, Roosevelt fundamentally transformed the Federal Government and American society.

And since the Depression had not yet ended, Democrats were especially fearful that these changes would get rolled back so when it came time for the Democrats to nominate a candidate for the Presidency in 1940, they settled on renominating Roosevelt.  At the same time WWII had begun — even though the U.S. would not enter it until 1941

When 1944 rolled around, changing leaders in the middle of World War II, which the United States was now fully engaged in, seemed extremely unwise, and FDR ran for and was elected to an unprecedented fourth term.

However he would not complete his fifth term.  He died less than 100 days after his inauguraton.  Within a year of the war ending Congress – pressed by Republicans – determined to insure that George Washington’s self-imposed two term limit would become enshrined in the Constistution.

Specifically excepting Truman from its provisions, the 22nd Amendment passed Congress on March 21, 1947. After Truman won a second term in 1948, it was ratified on February 27, 1951 (1,439 days).

Marc Lampkin is a Vice President at Quinn Gillespie

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Amendment XXI

1:  The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

2:  The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

3:  This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

If nothing else, the 21st Amendment to the Constitution underscores the slippery slope that comes from both the adaptation of Constitutional prohibitions to the mores of the day, and the legal gymnastics that invariably ensue.

If you’ve already read Professor Joerg Knipprath’s excellent essay on the 18th Amendment here at Constituting America, you understand what led to the Prohibition era in the United States.  It became clear within the matter of a decade that America’s statist experimentation with a wholesale ban on alcohol was an abject failure—but because the nation had taken the extraordinary step of banning the manufacture, sale and use of a something within the Constitution, it would take another constitutional amendment to repeal that ban.

But while this act of “liberal fascism” (as Jonah Goldberg so aptly put it) took many years to come to fruition and ratification, it was undone in a matter of mere months.  This is because the architects of the 21st recognized something that should remain foremost in the minds of citizen activists when they are trying to figure out if politicians will do the “right thing” on issues.  They recognized that when push comes to shove, politicians will invariably be beholden to a narrow range of vocal special interests, and are thus apt to do something profoundly stupid for the rest of us.

When it comes to ratification of constitutional amendments, we are provided with two methods—the state legislature method, which had been the primary method of ratification of most of the Amendments to that point; or the state convention method.  In the case of the 21st, the architects chose the latter.  The reason for this is simple:  the proponents of the 21st wanted to avoid the political pressures that had, in fact, led to the adoption of the 18th amendment in the first place.  State legislators continued to be beholden to the temperance movement, a loud group whom it was perceived held great political power.

Using a method of state conventions, the 21st Amendment was ratified just months after it was passed by Congress.

The 2nd section of the amendment makes manifest the axiom of the road to hell being paved with good (legal and political) intentions.  While the architects clearly wanted to do the right thing and preserve those essential elements of state sovereignty guaranteed in the 10th Amendment, the broad, sweeping language has puzzled legal scholars and presented case after case to the courts.

Fundamentally, the questions arise as to whether or not the powers reserved to the states in section 2—to essentially decide for themselves if the state will remain “dry”, trump other rights guaranteed or powers created or reserved elsewhere in the Constitution.  Can a state ban the total use of alcohol, for instance, even in religious situations, thereby trumping both the 1st and 14th Amendments?  The answer is no, it can’t but it took a ruling by the Supreme Court to make that certain.

Clearly, the states have the power to exercise tremendous control over the alcohol that is manufactured and purchased within their borders.  But like all other powers in our republic, those too are limited.

America’s foray into constitutionally prohibiting the sale of a good in the marketplace offers us a helpful object lesson for those attempting just the flip-side today.  Today we’re not talking about the federal government trying to enact a sweeping ban on the sale of a good—we’re talking about attempts to enact a federal mandate on the purchase of a good:  health insurance.

Citizens implicitly understand the Constitution’s limitations in the imposition of the individual mandate:  Congress simply has no power to compel individual Americans to purchase a good.  We will most likely see the Supreme Court striking down those provisions of the recent comprehensive health care reform legislation on those very grounds.

But with almost similar certainty, when that happens, we will see a movement, similar in many respects to the Temperance movement, attempting to pass and ratify an amendment to make the compelled purchase of such a good constitutionally legal.

We know from careful study of the constitution and an implicit understanding of the concepts of limited, enumerated, and separated powers just how terrible such an amendment would be.  We need only look at the tortured history of the 18th and 21st amendments, and their impacts on American society and legal frameworks, to see directly what would happen if such a mandate were to come to constitutionally pass.

If there’s anything that we’ve learned from our foray into using the Constitution to tinker with both the marketplace and societal norms, it’s that it not only doesn’t work well, it has horrendous unintended consequences.

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XX

1: The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

2: The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

3: If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

4: The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

5: Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

6: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Congress proposed the Twentieth Amendment in March 1932 and it was ratified 327 days later in January 1933. The lack of controversy surrounding the amendment’s proposal and ratification has been matched by a lack of attention to it since ratification. Unlike some other, even seemingly innocuous provisions in the Constitution, there have been no major U.S. Supreme Court cases interpreting it or significant political controversies surrounding it.

This despite the fact that it was intended to effect an important change in American political practice.

Professor Nina Mendelson explains that the main purpose of the amendment was to
increase “the responsiveness of government to the people’s will as expressed through the election.” Nina A. Mendelson, “Quick Off the Mark? In Favor of Empowering the President-Elect” 103 Northwestern University Law Review Colloquy 464, 472 (2009). The way this was to be achieved was by abolishing “lame duck” sessions of Congress.

The lame duck sessions were created by the interaction of two Constitutional provisions.

First, Article I of the Constitution originally provided that Congress would convene once a year in December (article I, section 4, clause 2). Second, prior to the Twentieth Amendment, presidential, vice-presidential and Congressional terms began in March, four months after the presidential elections. The date for the commencement of the new Constitutional officers had been set by the First Congress. The Constitution itself specified the length of the terms so, in order to be faithful to the Constitutional mandate regarding term length, newly elected officials would take office two, four and six years from the date in March the First Congress had appointed.

These two provisions taken together resulted in a long session in election years during which the president and members of Congress could continue to enact legislation and perform other functions after the election, even when those officials had been rejected by voters.

There were some obvious concerns with the lame duck sessions. For instance, the problem of accountability of elected officials to those they are meant to represent when an election has been held and an official has been rejected by voters but that official is still making law. Officials who have not been retained in office are also likely to be susceptible to other pressures, such as the need to find work following their exit from office. See John Copeland Nagle, “A Twentieth Amendment Parable” 72 N.Y.U. Law Review 470, 479 (1997).

Because the lame duck sessions were created by Constitutional provisions shortening the terms was not possible without amending the Constitution itself.

That is exactly what the Twentieth Amendment was meant to do. The Senate Judiciary Committee report on the proposed amendment specifically said one “effect of the amendment would be to abolish the so-called short session of Congress.” Congressional Research Service, Annotated Constitution: Twentieth Amendment at http://www.gpoaccess.gov/constitution/pdf2002/038.pdf.

By abolishing the lame duck sessions, the Twentieth Amendment would resolve the problems associated with them and increase the responsiveness of elected officials to their constituents.

The amendment would accomplish this by doing away with the mandatory December session, moving it instead to the subsequent January 3rd when the amendment called for the new Congressional session to begin. The president would be inaugurated shortly thereafter. If, for instance, the November election had not resulted in a clear majority in the Electoral College, the newly elected members of Congress, rather than the old, would select the new president.

The problem is that while the framers of the Twentieth Amendment did not “expect the outgoing Congress to meet during the lame-duck period from Election Day in November until January 3” that is, in fact, what happened. Nagle at p. 485. So, even after the Twentieth Amendment was ratified, lame duck sessions continue to be held with outgoing officials enacting legislation, spending money and bailing out industries. Presidents have been particularly active during this period, issuing pardons, signing treaties and appointing judges.

The failure of the Twentieth Amendment to do away with lame duck session illustrates a truth the Founders knew well—the law cannot supply what is lacking when self-restraint fails.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

Guest Essayist: Carol Crossed, Owner and President, Susan B Anthony Birthplace Museum

Amendment XIX

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.

It is hard to imagine that only 90 years ago, one half of the population of the United States could not vote because of their gender.  But the passage of the Nineteenth Amendment in 1920 mandated that states could no longer deny women this fundamental right.  It was named the Susan B Anthony Amendment, after the foremost leader for women’s suffrage.

On that first Election Day, November 2, 1920, single and married women, young and old, exercised a right they had fought for in their homes and churches, in town halls, and on the streets.  Polling places swelled almost beyond capacity with voters who had never before done such a thing.  Mothers, daughters, sisters, and aunts proud and eager, rushed to their polling location as early in the morning as possible, as if vying for the front row seat at the theater. Flustered by the idea of a secret ballot, one woman thought she needed to sign the back of the card. Others carried their groceries on their hips, maneuvering the crowds and chatting enthusiastically over screaming children.

The New York Times reported that while approximately one in three women, who were eligible, voted, more women than men actually voted in some districts. The Chicago Tribune credited Republican Harding’s landslide victory to the woman’s vote.

Unlike some other amendments to the constitution, the 19th Amendment was hard fought.  For instance, the 26th Amendment passed in 1971, which granted the right to vote for citizens 18 years of age, took only 3 months and 8 days to be ratified.  As a matter of fact, of the 27 amendments to the Constitution, 7 took only 1 year or less to become the law of the land.

However, women struggled for72 years to pass the Nineteenth Amendment.  Anti suffrage organizations were most popular in the New England states.  Opponents claimed that the female brain was of inferior size.  Others claimed that women did not possess a soul.  Humorous postcards portrayed women taking too long to get all their petticoats on to get to the polls.  Some newspaper editorials said that women would only vote the way their husbands told them to anyway.

But even the movement that supported votes for women was ripe with internal dissention.  The passage of the 15th Amendment, giving the Negro the right to vote in 1869, caused a 20 year split in the women’s movement.  Some felt that Negro suffrage should only be passed if it also gave women suffrage.  Others felt that the country was not prepared to enfranchise both and therefore women had to take a back seat.

Did the rights of the Negro have to diminish the rights of women, black and white?

That question was also being asked about women’s rights as it related to motherhood and family life.  Would freeing women to participate in government put at risk the care of children?  In other words, could the rights of all coexist?

Against this backdrop, suffrage leaders took seriously these portrayals of power and domination by their gender.  They exercised their greatest skill in combating this perception put forth by their opponents that they would abandon their children. Nowhere was this made more apparent than in their opposition to ‘Restellism,’ the term given to abortion, the most heinous form of child abandonment. It was named after the infamous abortionist Madame Restell, frequently arrested and discussed in Susan B Anthony’s publication The Revolution. Suffrage leaders saw opposition to ‘ante-natal murder’ and ‘foeticide’ as an opportunity to clear their name of unfair accusations against them by anti-vice squads, who believed the decadence of the Victorian Era lay at women’s independence.

But opposing abortion was more than a political strategy.  It was support for a human right, a right that was integral to their own.  The organizer of the first women’s rights convention in 1848, Elizabeth Cady Stanton, made these connections in a letter to suffrage leader Julia Ward Howe.  Howe believed war was the enemy of women because it destroyed their sons and husbands and brothers. Stanton made this same death connection with mothers who destroyed their children: “When we consider that women are deemed the property of men, it is degrading that we should consider our children as property to destroy as we see fit.”

Not only were anti-suffrage crusaders misinformed about the care for children that was integral to the suffrage agenda, they misunderstood that women wanted the vote not so much for their own self aggrandizement but for ‘life over material wealth’ or for the good of families and children. Child labor laws, poverty, and universal education were issues for which they sought the vote. They sought the vote for themselves because they were mothers who knew the needs of everychild. It was their maternity that they saw as their greatest gift of citizenship. As political artist J Montgomery Flagg’s winning 1913 poster proclaimed, Mothers bring all voters into the world.

Susan B Anthony did not live to see the passage of the Amendment that was named for her life’s work.  A radical young new woman leader, Alice Paul, was jailed with 66 colleagues for their protest at an event honoring President Wilson and the US participation in World War I.  This sparked the nation’s awakening and compassion, but more importantly, weakened the President’s opposition to the justice they demanded.

Paul created a flag with the suffrage colors: gold for the sunflower of Kansas (an early state to grant women suffrage), white for purity, and purple for eminence.  She sewed on it a star for each state that ratified the Amendment.  Only one more state was needed, and on August 18, 1920, Paul received a telegram proclaiming the ‘yes’ vote by the Legislature of the State of Tennessee.  Paul draped the flag over a balcony in Washington DC.  Women now could exercise the right to shape and determine the course of history.

Resources:

·         Boston Daily Globe, Nov. 3, 1920

·         NY Times, December 19, 1920

·         Chicago Daily Tribune, Nov. 3, 1920

·         Archive collection, Susan B Anthony Birthplace, Adams, MA

Carol Crossed is the Owner and President of the Susan B Anthony Birthplace Museum in Adams, Massachusetts.

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment XVIII

 

1:  After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

2:  The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

3:  This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Prohibition was not a novel idea in 1919. It was part of a social reform movement, the first waves of which had lapped American shores during the middle of the 19th century. It was a movement different from the ecclesiastical Great Awakenings that had surged periodically through the American colonies, though it shared some connection with those movements. Still, these reforms were sufficiently novel and widespread to lead Ralph Waldo Emerson to characterize them as a “war between intellect and affection” and its adherents as “young men…born with knives in their brain.”

Thirteen states had passed laws that prohibited the sale of alcohol by 1857, including, incredibly from a 20th-century perspective, New York. Following the Civil War and abolition of slavery, the enthusiasm for social reforms in general was exhausted in favor of a general yearning for a return to normalcy. But it returned with a vengeance towards the end of the century, with prohibitionists joining women’s rights groups to combat “demon rum.” That urge fed into a broader social movement to better the human condition and, indeed, human nature. While reformation of the human soul previously had been mainly the province of religion, the remaking of human nature had become, by the 20th century, as much a secular as a religious project. The growing middle class, “social science” movements in the study of human institutions, modern psychology, and old-style political power calculations combined in the Progressive Movement. Its adherents sought to improve human beings, as well as institutions, whether or not those human beings or institutions wanted to be improved.

The Progressives looked to the power of the state, not to individuals or private groups, to get things done efficiently. For many of their leaders, such as Princeton professor (and eventual U.S. President) Woodrow Wilson and his later advisers, such as Herbert Croly, the old institutions, such as the Constitution and the courts, were anachronisms that prevented the emergence of a better order, led by an enlightened and [P]rogressive elite. To achieve what critics then and now have characterized as totalitarianism of more or less soft type, these Progressives looked to the law as the tool to forge the new order. Law was no longer a series of constructs that reflected an inherent reason and that was useful to provide some rules to maintain a basic order in society. For the Progressives, the law was nothing less than an extension of social policy.

Alcohol prohibition also reflected the Progressive impulse to national mobilization to address issues, and the desire for a strong national government led by a strong and charismatic leader. It is not coincidental that these traits were also found in various continental European mass movements that sought to establish the new man, freed of traditional human weaknesses. The American version may have lacked some of the more pugnacious aspects of its European counterparts in Italy, Spain, Germany, and the Soviet Union, but it was close enough. As the National Review writer Jonah Goldberg has written, the period was one episode of America’s “Liberal Fascism.”

Prohibition previously had primarily been the project of the states, with Congress and the Supreme Court assisting “dry” states by declaring that their prohibitions did not violate federal control over interstate commerce. By 1913, in the Webb-Kenyon Act, Congress went further, by affirmatively forbidding the shipment of liquor in interstate commerce into dry states. Thus, prohibition became a national matter, a development also reflected in federal criminalization of drug trafficking, gambling, and prostitution. All of those were vices that the Progressives (just like their reformist ancestors) saw as products of a craven humanity that needed to be—and could be—reformed, while their critics saw such activities as necessary social safety valves, inevitable for societies composed of humans that could, at most, be nudged towards slight and gradual enlightenment at the cost of great personal effort of which most people were incapable. For the critics, laws against such behavior had the same effect as telling the tides not to come in (or commanding the sea levels not to rise).

By 1919, the Eighteenth Amendment completed the process by prohibiting the manufacture, transportation, and sale of intoxicating liquors within the United States. Later that year, Congress acted on the authority it had under that amendment and enforced national prohibition through the Volstead Act. That law set the maximum permissible alcohol content at 0.5%, an amount that outlawed anything stronger than juice from stored oranges.

In light of the negative historical reputation that has developed around Prohibition, it bears remembering that the concept was hugely popular initially. It took barely one year for the needed 36 states to approve the 18th Amendment. However, that support turned to opposition within a very brief time, in the process raising a number of constitutional questions about that amendment specifically, and about the constitutional amendment process more generally.

A novel attribute of the 18th Amendment was a clause that required the amendment to be adopted within 7 years. When the issue was presented to the Supreme Court in Dillon v. Gloss in 1921, Justice Willis Van Devanter upheld this limitation for a unanimous court. Van Devanter concluded this clause was not part of the amendment, but part of Congress’s resolution of submission of the amendment to the states. Therefore, such a clause did not violate Article V, which deals with amendment of the Constitution.

Van Devanter’s opinion was important for the proposed Equal Rights Amendment of the 1970s. When that amendment failed to gain passage during the time (7 years) set, Congress by a majority vote—but not two-thirds—added three years to the timetable for adoption. While this action arguably was constitutional in light of Dillon, it came at a political price. Opponents made an effective case that the extension was political overreaching, at best, and unconstitutional, at worst.

The Dillon court had also declared that it was a good idea that constitutional amendments be adopted within a certain time-frame, to reflect a dominant political consensus at a particular time. Van Devanter noted that there were still several proposed amendments that had not been ratified, including two from the original twelve in the Bill of Rights. He questioned whether such an amendment would be legitimate, if adopted after such long dormancy. That hypothetical became concrete when the 27th Amendment (dealing with Congressional pay changes) was adopted by the requisite number of states in 1992, after two centuries of constitutional purgatory.

Interestingly, Van Devanter may have had a point because the practice has been not to allow states to rescind their approval of an amendment even though the amendment may not have been adopted on the date of the attempted rescission. Of course, states are free to approve after having previously refused to adopt the proposal. This one-way ratchet in favor of approval has little to recommend it jurisprudentially over the opposite view. It was simply the product of political necessity, when Congress refused to allow states to rescind approval of the 14th Amendment because the unpopular and controversial amendment’s congressional supporters needed every state they could to get it past the constitutional finish line.

Another curiosity of the 18th Amendment was that, as disillusion set in, many of the new opponents were Progressives and elites of all political stripes. Due to the perceived difficulty of repealing the amendment, they urged nullification by having the states refuse to enforce the federal laws and decline to make their own. The irony of their position was not lost on them, as they openly appealed to the success that Southerners had enjoyed with their refusal to enforce the 14th and 15th Amendments. Sounding like John C. Calhoun and other 19th-century Southern apostles of nullification, these good liberals distinguished between lawbreaking and orderly, principled, majoritarian nullification.

Another question involved whether the Ohio legislature could approve the 18th Amendment when a non-binding popular referendum had resoundingly rejected it. In Hawke v. Smith in 1920, Justice William Day’s opinion for a unanimous Supreme Court held that the legislature, voting on a constitutional amendment was performing a federal function under Article V, not a state function. Since Article V did not provide for popular referenda, the voters of Ohio had nothing to say about the matter, a proposition of some delicacy, since state legislative elections rarely turn on how a legislator proposes to vote on a federal constitutional amendment that, typically, is not submitted until after such election.

Finally, a number of opponents urged that any amendment, such as the 18th, that curtailed individual rights, must be adopted by state constitutional conventions, not state legislatures. Though it was not expressly required by Article V, such had been the approach for the Bill of Rights. The Supreme Court rejected that argument unanimously in U.S. v. Sprague in 1931, but the argument had such political appeal that Congress directed that the repeal of prohibition through the 21st Amendment be decided by state constitutional conventions.

 

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

Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

Amendment XVII

The Seventeenth Amendment, adopted April 8, 1913, provides as follows:

1: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

2: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

3: This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

The first sentence substitutes “elected by the people thereof” for the words “chosen by the Legislature thereof” in the language of the first paragraph of Article 1, Sect. 3. The amendment also provides the procedure for filling vacancies by election, but permitting states by legislation to allow the state’s governor to make temporary appointments.

Prior to the 17th Amendment, the Constitution provided for US senators to be elected by the legislature of each state in order to reflect that the Senate represented the states, as contrasted with the House which represented the people of each state.  Originally, U.S. senators did represent their own states because they owed their elections to their state legislature, rather than directly to the voters of the state. The Senate, thus, carried forward the (con)federal element from the Articles of Confederation, under which only the states were represented in the national legislative body.  As noted in The Federalist, the fact that state legislatures elected U.S. senators made the states part of the federal government.  As intended, this arrangement provided protection for states against attempts by the federal government to increase and consolidate its own power. In other words, the original method of electing senators was the primary institutional protection of federalism.

In the decade prior to the Civil War, over the issue of slavery, and increasingly after the Civil War, some state legislatures failed to elect senators. That development, plus charges that senators were being elected and corrupted by corporate interests prompted some states to adopt a system of de facto election of senators, the results of which were then ratified by the state legislature.  Proposals for a constitutional amendment providing for direct popular election of senators were long blocked in the Senate because most senators were elected by state legislatures.  Over time, the number of senators elected de facto by popular election increased.  Also, states were adopting petitions for a constitutional convention to consider an amendment to provide for popular election of senators.  As the number of states came closer to the number requiring the calling of a Constitutional Convention, the Senate allowed what became the Seventeenth Amendment to be submitted to the states for ratification.

A major factor promoting direct popular election of senators was the Progressive Movement.  This movement generally criticized the Constitution’s system of separation of powers because it made it difficult to enact federal legislation. The Framers had done so in order to protect liberty and to create stability in government.  The Progressives, on the other hand, wanted government to be more democratic and, therefore, to allow easier passage of national legislation reflecting the immediate popular will.

By shifting the selection of senators to the general electorate, the 17th amendment not only accomplished those purposes; but it also meant that senators no longer needed to be as concerned about the issues favored by state legislators. Predictably, over time, senators voted for popular measures which involved “unfunded mandates” imposing the costs on the states.  Senators were able to claim political credit for the legislation, while the states were left to pay for new national policies not adopted by the states.  Such unfunded mandates would have been unthinkable prior to adoption of the 17th amendment.

Ironically, more than the required number of state legislatures ratified the 17th Amendment, with little or no realization that the Seventeenth amendment would diminish state power and undermine federalism generally.  Many legislators apparently thought they had more important matters to attend to than to devote time to the struggles that often revolved around electing a senator. Such an attitude might have been understandable at a time when the federal government had much less power vis-a-vis the states.  What those legislators did not appreciate was that the balance of power favorable to the states was due to the fact that state legislatures controlled the U.S. Senate.  Over time, since adoption of the Seventeenth Amendment, the balance of power has consistently shifted in favor of the federal government.

Dr. John S. Baker, Jr. is the Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.

Guest Essayist: Horace Cooper, legal commentator and a senior fellow with The Heartland Institute

Amendment XVI

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

At the founding of our nation, the framers decided not to allow the federal government to assess income or other direct taxes unless they were apportioned according to population.  A direct tax is simply any tax that is paid directly to the federal government by the individual.  Commonplace today, these types of taxes were frowned upon when the nation began.  Instead of income or other direct taxes, the founders thought that indirect taxes – sales taxes, import duties and the like – were legitimate means for the federal government to raise money.

The consensus of the founders was that the power of direct taxation would shift the dynamic between the individual and the state in a powerful and oppressive way.  With direct taxing power, it was feared that Congress could assess a tax on all persons with no limits on the amount.  Whether assessed as a percentage or a fixed amount, these taxes couldn’t be readily avoided or evaded by the citizens.  For instance, a person couldn’t simply not engage in the behavior that was subject to taxation the way you could with a sales tax or other transaction style tax.  A direct tax could apply to income, land, cattle, securities transactions etc. and force people to either pay the tax or have their property confiscated.  In addition, with Congress’ power of the purse over the army and the militia, the people would be powerless to prevent collection.

Although not consistently, the Supreme Court struck down several attempts by Congress to establish so-called “direct” taxes.  However, during one critical period – the Civil War – the Supreme Court upheld a temporary income tax established to fund the war effort.  The Revenue Act of 1861 levied a flat tax of 3% on annual income above $800 (or roughly $20,000 in today’s dollars)

In 1893, after the war was over and the temporary tax expired, Congress adopted another income tax law.  In this case, the Congress attempted to assess a federal tax on income derived from real estate.  In 1895, in Pollock v. Farmer’s Loan and Trust, the Supreme ruled that the income tax was unconstitutional.  This view prevailed through the turn of the century.

Historians suggest that the growing needs of the Federal Government necessitated a regular and more lucrative revenue source and increasingly politicians in both parties eyed the direct or income tax as a solution.  Nevertheless, it wasn’t until 1909 that the effort to push for an amendment began.

President William Taft sent a formal message to Congress requesting that an amendment be adopted that would allow Congress to have this power once and for all.  The Senate approved the Sixteenth Amendment unanimously 77-0 and the House approved it by a vote of 318-14.  After being ratified by 36 states in February of 1913, it became law.  Ultimately, 42 of the 48 states would ratify the amendment.

Within a few years, it had become the principal source of income for the federal government.  Nevertheless, its impact wasn’t obvious.  In the beginning, hardly anyone had to file a tax return because the tax did not apply to the vast majority of the people in the U.S.  For example, in 1939, 26 years after the Sixteenth Amendment was adopted, only 5% of the population, counting both taxpayers and their dependents, was required to file returns. Today, nearly all adults and even some youths must file an annual income tax form.

Horace Cooper is a legal commentator and a senior fellow with The Heartland Institute

Guest Essayist: Colin Hanna, President, Let Freedom Ring

Amendment XV

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

The Congress shall have power to enforce this article by appropriate legislation.

The Fifteenth Amendment to the United States Constitution was passed by Congress on February 26th 1869, and ratified by the States on February 3rd, 1870.  Although many history books say that it “conferred” or “granted” voting rights to former slaves and anyone else who had been denied voting rights “on account of race, color, or previous condition of servitude,” a close reading of the text of the amendment reveals that its actual force was more idealistic.  It basically affirmed that no citizen could rightfully be deprived of the right to vote on the basis of that citizen’s race, color or previous condition of servitude – in other words, that such citizens naturally had the right to vote.  That is how “rights” should work, after all; if something is a right, it does not need to be conferred or granted  and cannot be infringed or denied.

It is worth noting that the Fifteenth Amendment only clarified the voting rights of all male citizens.  States have the power to define who is entitled to vote, and at the time of the signing of the Constitution, that generally meant white male property owners.  The States gradually eliminated the property ownership requirement, and by 1850, almost all white males were able to vote regardless of whether or not they owned property.  A literacy test for voting was first imposed by Connecticut in 1855, and the practice gradually spread to several other States throughout the rest of the 19th Century, but in 1915, the Supreme Curt ruled that literacy tests were in conflict with the Fifteenth Amendment.

Section 2 of the Fifteenth Amendment sets forth the means of enforcing the article: by “appropriate legislation.”  It was not until nearly one hundred years later, with the passage of the Voting Rights Act of 1965, that the enforcement of the Fifteenth Amendment was sufficiently clarified that no State could erect a barrier such as a literacy test or poll tax that would deny any citizen the right to vote, as a substitute for overtly denying voting rights on the basis of race or ethnicity.  The Civil Rights Act of 1957 had taken a step in that direction, but practices inconsistent with the Fifteenth Amendment remained widespread.  The Nineteenth Amendment. ratified in 1920, had granted women the right to vote.  The only remaining legal barrier to citizens is age, and that barrier was lowered to 18 by the Twenty-Sixth Amendment, ratified in 1971.  Many people do not realize that a State could permit its citizens to vote at a lower age than 18, and none has.

The moral inconsistency between a Declaration of Independence that proclaimed that all men (and, by widely accepted implication, all women) were created equal, and a Constitution that tolerated inequality based on race and gender, required more than 150 years to be resolved.  The ratification of the Fifteenth Amendment in 1870 was one of the major milestones along that long path.

Colin Hanna is the President of Let Freedom Ring, a public policy organization promoting Constitutional government, economic freedom, and traditional values. Let Freedom Ring can be found on the web at www.LetFreedomRingUSA.com.

Guest Essayist: Kevin Theriot, Senior Counsel with the Alliance Defense Fund

Amendment XIV

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The Fourteenth Amendment and a Return to Federalism

The Fourteenth Amendment to the United States Constitution was enacted in 1868, just three years after the Civil War.  For obvious reasons, Congress didn’t trust the Southern States to voluntarily provide former slaves with all the benefits of U.S. Citizenship, so it specifically required them to do so via the federal constitution.  Subsection 1 of the Fourteenth Amendment states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This amendment greatly undermined federalism since before the enactment of the Reconstruction Amendments, civil rights were largely protected by state constitutions.  The Bill of Rights applied only to the federal government, which was smaller, and had less power.  In fact, some Southerners still maintain that the Civil War was not about slavery, but about State’s rights and the power of the federal government.

Justice Harlan described this nationalization of civil liberties as a “revolution…reversing the historic position that the foundations of those liberties rested largely in state law.”  Walz v. Tax Com. of New York, 397 U.S. 664, 701 (1970) (Harlan, J., dissenting).  Beginning in 1897, the Supreme Court began interpreting the Fourteenth Amendment’s prohibition on depriving any person of “life, liberty, or property, without due process of law” as incorporating the Bill of Rights in to the amendment so that they also applied to the states.  See Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897) (incorporating the Fifth Amendment).

The Free Exercise Clause of the First Amendment was incorporated in 1940 in Cantwell v. Connecticut, 310 U.S. 296 (1940).  Given the history of the Fourteenth Amendment, it’s assumed the Court thought it necessary to apply the Free Exercise Clause to the states because they could not be trusted to protect religious freedom with their own constitutions and statutes.  But those roles are now reversed.

The Supreme Court’s 1990 decision in Employment Div., Dept. of Human Services v. Smith drastically weakened the federal Free Exercise Clause by holding that general, neutrally applicable laws do not violate religious freedom.  In that case, a general law prohibiting ingestion of a hallucinogenic drug called peyote applied to everyone, so the fact that it also restricted the freedom of Native Americans who use it during religious ceremonies did not violate the federal constitutional.  Smith has had a profoundly negative impact on church religious freedom in such diverse areas as land use and the ability speak out on political issues.  As a result, States are now increasing the protection they provide to religious freedom because the federal courts can no longer be trusted to protect it.

To date sixteen (16) states have taken it upon themselves to enact Religious Freedom Restoration Acts protecting their citizens:  Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia.[1] And at least twelve (12) states have interpreted their constitutions to provide the heightened protection applied by the Supreme Court of the United States prior to Smith:  Alaska, Indiana (possibly), Kansas, Maine, Massachusetts, Michigan,  Minnesota, Montana, North Carolina, Ohio, Washington, and Wisconsin.[2]

So states now provide the real protection for religious freedom – an interesting return to the federalism that was undermined when it was thought states couldn’t be trusted to do so.


[1] Alabama – Ala. Const. amend. 622, § V(a); Arizona – Ariz. Rev. Stat. § 41-1493.01(B) (2003); Connecticut – Conn. Gen. Stat. § 52-571b(a) (2000); Florida – Fla. Stat. ch. 761.03(1) (Supp. 2003); Idaho – Idaho Code § 73-402(2) (Michie 2003); Illinois – 75 Ill. Comp. Stat. 35/15 (2001); Louisiana – La. R.S. § 13-5233 (2010); Missouri – Mo. Rev. Stat. § 1.302 (2009); New Mexico – N.M. Stat. Ann. § 28-22-3 (Michie 2000); Oklahoma – Okla. Stat. tit. 51, § 253(A) (2003); Pennsylvania – 71 Pa. Stat. Ann. § 2403 (2002); Rhode Island – R.I. Gen. Laws § 42-80.1-3 (2002); South Carolina – S.C. Code Ann. § 1-32-40 (Law. Co-op. Supp. 2002); Tennessee – T.C.A.§ 4-1-407 (2009); Texas – Tex. Civ. Prac. & Rem. Code Ann. § 110.003(a) (Vernon Supp. 2004-2005);Virginia – Va. Code § 57-2.02(B) (2007).

[2] Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274 (Alaska 1994), Cosby v. State, 738 N.E.2d 709, 711 (Ind. App. 2000) (“Indiana Constitution may demand more protection for citizens than its federal counterpart”); Stinemetz v. Kansas Health Policy Authority, (KS app., May 4, 2011), Rupert v. Portland, 605 A.2d 63 (Me. 1992), Attorney Gen. v. Disilets, 636 N.E.2d 233 (Mass. 1994); People v. DeJonge, 501 N.W.2d 127 (Mich. 1993); State v. Hershberger, 462 N.W.2d 393 (Minn. 1990); Davis v. Church of Jesus Christ of Latter Day Saints, 852 P.2d 640 (Mont. 1993); Matter of Browning, 476 S.E.2d 465 (N.C. App. 1996); Humphrey v. Lane, 728 N.E.2d 1039 (Ohio 2000); First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992) (en banc); and State v. Miller, 549 N.W.2d 235 (Wis. 1996). See generally Angela C. Carmella, State Constitutional Protection of Religious Exercise: An Emerging Post-Smith Jurisprudence, 1993 B.Y.U. L. Rev. 275 (1993).

Kevin Theriot is senior counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.

Guest Essayist: Hadley Heath, a Senior Policy Analyst at the Independent Women’s Forum

Amendment XIII

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation.

The Declaration of Independence, penned in 1776, proclaimed that “All men are created equal,” and “they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

God gives rights; government serves God and the people by protecting rights.  America’s Founding Fathers recognized this principle, but our young country failed to protect the God-given rights of some Americans.  In the U.S., the practice of slavery continued throughout the Revolutionary War and the birth of our new country, and for nearly 100 years afterward.

It was not until the ratification of the Thirteenth Amendment to the U.S. Constitution, in 1865, that our government established a protection of liberty for all Americans, specifically liberty from slavery or forced labor.

For centuries, slavery was a worldwide phenomenon, legal and socially acceptable in many empires, countries, and colonies.  From their early development, the southern American colonies relied on slavery as integral to their agricultural economy.  But opposition to slavery – in the colonies and abroad – was growing stronger throughout the 17th and 18th centuries.

In America, religious groups including the Quakers strongly opposed slavery and advocated for its abolition. Pressure from Quakers in Pennsylvania led to the passage of the state’s “Act for the Gradual Abolition of Slavery” in 1780, only four years after the establishment of the United States as a country.

The British government put an end to slavery in its empire in 1833 with the Slavery Abolition Act.  The French colonies abolished it 15 years later in 1848.  These worldwide events added fuel to the anti-slavery movement in the U.S.

Some American Abolitionists, including William Lloyd Garrison, called for the immediate emancipation of all slaves.  Other Americans who opposed slavery did not call for immediate emancipation, but instead hoped that the containment of slavery to the southern states would lead to its eventual end.

The American Civil War broke out in 1861 when several of the southern slave states seceded from the Union and formed the Confederate States of America.  This dark chapter of America’s history ultimately decided the fate of slavery when the nation came back together after the defeat of the Confederate States.

President Lincoln dreamt of an America where all people were free.  In fact, he declared all slaves to be free in his 1863 Emancipation Proclamation.  An amendment to our Constitution followed as the next step to make the end of slavery a permanent part of our nation’s governing document.

Together, at the end of the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments greatly expanded the civil rights of many Americans.

While the Thirteenth Amendment outlawed slavery, it did not grant voting rights or equal rights to all Americans.  Nearly a century after the Thirteenth Amendment was ratified, Congress passed the Civil Rights Act of 1964 that outlawed racial discrimination and segregation.

Sadly, the Thirteenth Amendment did not bring about an immediate or total end to slavery in the U.S.  Today, it is estimated that 14,500 to 17,500 people, mostly women and children, are trafficked into our borders for commercial sexual exploitation or forced labor each year.  This is in clear violation of the Thirteenth Amendment, and Americans should work toward a swift end to human trafficking in the U.S. and all over the world.

Before our Declaration of Independence was written, English philosopher thinker John Locke developed the idea that individuals have the natural right to defend their life, health, liberty, and possessions (or property).  While the United States has always and should always protect the property rights of individuals, the Thirteenth Amendment makes it clear that owning “property” in the United States cannot mean owning another person.

Individual liberty for all and the God-given right to pursue happiness are not compatible with slavery.  The end of slavery with the ratification of the Thirteenth Amendment is one of the most “American” of all of our historical events, because this event brought our country closer in line with the principles upon which it was founded.

Hadley Heath is a senior policy analyst at the Independent Women’s Forum. (www.iwf.org)

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment XII

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

The election of 1800 was a critical moment in the evolution of American republicanism, even more momentous than the decision of George Washington four years earlier not to seek election to a third term, an election he surely would have had won. Washington’s decision set the stage for the informal term restriction on Presidents that lasted a century and a half. It had to be formalized in the 22nd Amendment after Franklin Roosevelt became, in the phrasing of political opponents, a “Third Termite” and more. Washington’s move, all personal reasons aside, made the point that republics are endangered by long-serving executives. Such longevity, combined with the inherent powers of the office, promotes concentration of power, with a likely cult of personality and attendant corruption.

No less a threat to republics is the failure of the dominant political coalition to yield power when it loses at the polls. That is particularly true when the republic is young and its political institutions not yet fully formed and tested. The history of the world is rife with rulers, swept into office on revolutionary waves that establish formally republican systems, entrenching themselves in ever-more authoritarian manner when popular opinion turns against them. That first election when the reins of government are to be turned over from those who led the system from its founding to those who have defeated them is crucial to establish the system’s republican bona fides. For Americans, that was the election of 1800, when the Democratic Republicans under Jefferson defeated the Federalists under Adams.

If such a change of power is to occur peacefully, optimally the verdict of the voters is clear and the process of change transparent. Anything less greatly reduces the chance for peaceful transition. Judged by those standards, the election of 1800 was a bad omen for Americans at the time. The selection of the President was thrown into the House of Representatives, where it took 36 ballots and considerable political intrigue to select the leader of the victorious group, Thomas Jefferson. In a bit of historical irony, the delay was not due to Federalist plotting, but the fact that Jefferson and Aaron Burr received the same number of electoral votes. Though the latter was the intended vice-presidential nominee, he declined to step aside, making future relations between the two rather frosty. That lengthy and murky process promoted talk of the use of force by both sides, ultra-Federalists for whom the political chaos justified disregarding the election results and rabid Jeffersonians who called on state militias to march on Congress to compel the selection of their champion and to “punish their enemies,” to borrow a phrase.

Fortunately, Adams and (perhaps more reluctantly) Jefferson, along with other cooler heads in both groups, subordinated their immediate political advantage to longer-term republican stability. Adams left town. With political manipulation from, among others, Alexander Hamilton of all people, Jefferson was elected, after all. In turn, Jefferson, prodded by the pragmatic among his advisors, limited political retaliation against his vanquished opponents.

Contributing to the murkiness and indecision of the process was the formal constitutional structure for election of the President. It was anticipated that the system in Article II of electors chosen as directed by the several state legislatures would nominate several candidates for President. After the election of George Washington, it was surmised, no nominee likely would receive a majority vote from those electors. Instead, nominations of up to five individuals (based on each elector voting for two persons) would be presented to the House of Representatives, which would choose as President the person who received the approval of a majority of state delegations in that chamber. Worse, it turned out, the runner-up would be Vice-President.

On first glance, as I explained in connection with Article II, Section 1, clause 3, the system made great ideological and historical sense. Hamilton, one of the principal architects, wrote proudly in Federalist 68 that “if the manner of it be not perfect, it is at least excellent.” The system would produce the most qualified nominees, as those would be selected by a small number of persons who were themselves chosen for their fitness to make wise selections and to avoid “cabal, intrigue, and corruption.” On a more practical level, the system contained checks and balances whereby unqualified local favorites might receive scattered votes, but a group of better-known and more qualified regional and national figures would receive enough votes to be nominated. The selection of the President from the nominees would then be made by the House, whose members’ decisions would, presumably, be reviewed for wisdom and lack of corruption by the voters at the next election.

In fact, the emergence after the Constitution’s adoption of nascent proto-parties spoiled the plan. Initially, a group of Congressmen coalesced around opposition to the ambitious Hamiltonian program of public finance and commercial development represented in the Treasury Secretary’s famous three reports to Congress in 1790 and 1791. Their enigmatic and at times reluctant figurehead was Thomas Jefferson, though most of the organizing was done by James Madison and others. This development had the classic characteristics of what has historically been called a political “faction,” a term that any righteous and self-respecting republican of the time found vile. Factions developed in support of (or, more likely, opposition to) some matter of political controversy or charismatic political figure. They tended to rise and fall with such single issues and figures.

Once a faction formed in opposition to Hamilton, the “spirit of party” (i.e. political self-interest or local parochial advantage, rather than the “common good”) was said to have been loosed in the land. Acting purely out of self-defense, as they assured the people (and themselves), Hamilton’s supporters, too, organized as a coherent group. And whatever charismatic ante the Jeffersonian faction might have from their leader in this political poker game, the Federalists could “see” with the personality and political skills of Hamilton and “raise” with the increasingly partisan stance of George Washington.

Both sides quickly organized into entities that more resembled modern political parties. Both were centered in Congress, but began to make mass appeals to the public. The Federalists were far superior in the number and reach of their newspapers (unlike today’s media, in those days newspapers were refreshingly candid about their political biases). But the Jeffersonians were more adept at public organizing, honing their skills in that arena because they were the minority in Congress during most of this time. Ultimately, it was that latter skill that proved crucial in 1800.

In practice the Congressional caucuses dominated the nomination process, and the discipline of the emerging party organizations—especially of the Jeffersonians–at the state level, effectively turned the electors into voluntary partisan non-entities.  As Justice Robert Jackson satirized them in a dissenting opinion in 1952, “They always voted at their Party’s call, And never thought of thinking for themselves at all.”

Prodded by the debacle of the election of 1800 and the emergence of a rudimentary two-party system, the Congress and the states adopted the Twelfth Amendment. Primarily, this changed only the process by which nominations for President and Vice-President were made and placed the election of the Vice-President in the Senate if there was no electoral vote majority. That has been enough, however, to avoid a repeat of the confusion of the election of 1800, at least once a stable two-party political structure emerged in the 1830s. The election of 1824, similarly chaotic, was the result of the breakdown of the existing structure into multiple competing political factions. Admittedly, there have been a few close calls, such as in 1876 and 2000. The system has worked, though critics might say it has done so in spite of itself. At the very least, it has worked in a manner unforeseen by the Framers.

Incidentally, as the Supreme Court opined in the 1952 case (Ray v. Blair) mentioned above, states can disqualify electors who refuse to pledge to vote for their party’s candidate. The Court reasoned that electors are acting for the states and can be regulated by them. Of course, “automatic” voting for the candidate to whom the elector is pledged can result in a surreal spectacle like that in 1872 when three Democratic electors cast their votes for their candidate, Horace Greeley—who had died.  Justice Jackson’s dissent emphasized the Framers’ design of the role of electors and argued that a state can no more control “the elector in performance of his federal duty…than it could a United States Senator who also is chosen by, and represents, the State.”  About half of the states have laws that purport to punish a “faithless” elector, but no such punishment has ever occurred.

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

Guest Essayist: Kevin Theriot, Senior Counsel with the Alliance Defense Fund

Amendment XI

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State

Eleventh Amendment Immunity:  Good Legal Fiction

On its face, the Eleventh Amendment to the United States Constitution seems to provide a great deal of protection for states against lawsuits.  The amendment says:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.

Judicial interpretation has made it even broader.  For instance, the amendment appears to only prevent a private citizen of South Carolina from suing the State of Georgia in federal court.  But the Supreme Court has said that it also prohibits suits by citizens of Georgia from suing their own state in federal court, Hans v. Louisiana, 134 U.S. 1 (1890), and immunity even applies if the complaint is filed in Georgia’s state courts.  Alden v. Maine, 527 U.S. 706 (1999).

This judicial willingness to go well beyond the language of the Eleventh Amendment is based upon the idea that it is just one aspect of the broader doctrine of sovereign immunity, a doctrine that precedes the constitution itself.  Article III of the Constitution gives federal courts jurisdiction of cases “between a State and a citizen of another State.”  Historians suspect that most of the Founding Fathers anticipated that this would involve cases where a state is suing a citizen of another state, but not vice versa.  See 13 Charles Alan Wright, Miller, Federal Practice & Procedure § 3524 (3d ed. 2010).  The founders likely thought states were protected from suits by citizens by the well-established English Common Law rule that a sovereign could not be sued without its consent.  This foundational belief may explain the quick passage of the Eleventh Amendment, which was enacted shortly after the Supreme Court found in 1793 that a citizen of South Carolina could indeed sue the State of Georgia in federal court.  Chisholm v. Virginia, 2 U.S. (2 Dall.) 419 (1793).  It also explains why over the years the Court has viewed the Eleventh Amendment as just one aspect of a broader common law principle.

But it doesn’t explain why courts have made it so easy to circumvent the Eleventh Amendment.  For instance, someone who has had their civil rights violated by the state of Georgia cannot sue Georgia, but they can sue its head executive, Governor Deal.  For all practical purposes, the result for the plaintiff is the same.  If the plaintiff wins, the court will enter an injunction against the governor in his official capacity, which will affect all other state officials.  This principle was established in Ex Parte Young, 209 U.S. 123 (1908), and is often referred to as the “Ex Parte Young fiction.”  Practically, suing governors in their official capacity is just a suit against their state.  But the Court said the state officer could never really be given authority to violate the law, so it is not really a suit against the state.  One can understand why it is referred to as a “fiction,” since it resembles a Star Wars Jedi mind trick.  Later, the Court determined that a successful plaintiff can even obtain damages from state officials.  See Hafer v. Melo, 502 U.S. 21 (1991).

Why is it the Court feels justified in reading the Eleventh Amendment so broadly, but then completely undermining it with a legal fiction?  Most likely, it’s because judges understand that in a country built upon the concept of inalienable rights, state officials must be held accountable when they violate those rights.  In fact, in Chisholm, the case that prompted passage of the amendment, the Justices discussed “whether sovereign immunity—a doctrine born in a monarchy and based upon the notion that the crown could (or perhaps simply should) do no wrong—ought to play any role in the new democratic republic.”  Wright, Miller, supra, § 3524.

It seems unnecessarily complicated to adopt a legal fiction requiring plaintiffs to sue state officials in order to give lip service to a doctrine that shouldn’t even apply to our form of government.  But we do get the right result in the end – citizens have legal recourse against state officials that violate their rights. After all, subtle nuances, complicated plots, and happy endings are what good fiction is all about.

Kevin Theriot is senior counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.

 

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The last amendment in the Bill of Rights, the 10th, is an apt bookend for the 1st.  In fact, taken together with the 9th Amendment, it can be said that the entire vision the founders had for the United States can be found in these two amendments.

The Founders were inherently skeptical of concentrated government power—it is why we were initially conceived as a loose confederacy of sovereign states.  When that ultimately collapsed, the Founders looked towards federalism, a political system in which power is diffused among various branches and levels of government.  As the Supreme Court said only 20 years ago, “federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”[1]

What was envisioned was a system of “dual sovereigns,” separate, but  (at least as conceived) co-equal systems of government, a system in which the federal government had carefully enumerated powers, the states had carefully enumerated powers, and that which had not been delegated would be retained by the people.  In other words, power flows from the people to the government, and as the High Court said 70 years ago:  “The amendment states but a truism that all is retained which has not been surrendered.”[2]

Abuse of the Commerce Clause led to a near-ignoring of the 10th Amendment by federal authorities for decades.  It was only in the 1990s that there began a resurgence of these principles, as the High Court finally began to recognize that the Founder’s vision of the nation had become rather twisted.  They began to restate that vision, and the reason why, re-affirming that efforts to grow federal power should only be undertaken with great deliberation.  In one of the most poetic Supreme Court passages ever written, Justice Sandra Day O’Connor wrote:

[T]he Constitution protects us from our own best intentions: it divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.[3]

How often have we seen federal power enlarged, or attempts made to grow federal power, for just those reasons?

Many of the cases brought to the Supreme Court in the 1990s and beyond have centered on the problem of Congress essentially compelling the states to act in a particular manner—or forcing those states to act as agents of the federal government.  There are a number of problems with this, from a basic “good government” perspective—not the very least being it forces those states to spend money on federal priorities, rather than their own.  Moreover, it removes policy prioritization an additional level away from an impacted population.

Again, as the High Court said in New York v. United States:

States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government’s most detailed organizational chart. The Constitution instead “leaves to the several States a residuary and inviolable sovereignty,” The Federalist No. 39, p. 246 (C. Rossiter ed. 1961), reserved explicitly to the States by the Tenth Amendment.[4]

Since the 1990s, there has been a line of cases in which these principles have been reasserted by the High Court.  In 1995, the Supreme Court finally found a limit to the Commerce Clause by striking down the Gun-Free School Zones act in United States v. Lopez. Two years later, in Printz v. United States, the Court struck down portions of the “Brady Bill”.  The court has repeatedly stated now that regardless of how well-intentioned a federal law might be, Congress cannot ignore the Constitution’s precepts on limiting federal power and not forcing a state to substitute federal priorities for its own.  The federal government can encourage, it can even “bribe” with federal funds, but it cannot out-and-out compel a state to act in an area in which the states hold their own sovereign power.

In New York v. United States, Justice O’Connor called the 10th a “tautology”, a restatement of what is obviously true.  But given the erosion of the 10th Amendment over the course of the republic’s history, and the even greater erosion of constitutional knowledge, this so-called tautology needs to be restated.  When discussing the principles undergirding our founding, regardless of the audience, it is helpful to reiterate the following, as underscored by the 10th Amendment:  government does not have rights.  People have rights.  Government has powers—powers that we have narrowly and carefully ceded to it by limiting some measure of our rights.  All that we have not surrendered, we have retained, and we must defend those rights earnestly and vigorously.


[1] New York v. United States, Coleman v Thompson, etc

[2] United States v. Darby, 312 US 100, 124 (1941)

[3] New York v. United States, 505 US 144 (1992)

[4] Ibid.

 

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/

 

Guest Essayist: Steven H. Aden, Senior Counsel, Alliance Defense Fund

Amendment IX

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Despite 220 years of constitutional interpretation, there really isn’t much one can say about the Ninth Amendment.  And that’s just what James Madison and the Framers intended.

The Ninth Amendment is that rare creature in American politics, a success story conceived in humility.  The first eight amendments of the Bill of Rights established freedom of worship, the freedoms of assembly, speech, press and petition, the rights to bear arms, to be free from government intrusions into citizens’ homes, to due process and to a jury of one’s peers, and many others.  Having penned what may have been the finest articulation of the rights of man in human history, Madison and his colleagues could have been forgiven for giving way to hubris and capping it with a rhetorical flourish.  Instead, they added a caution, by way of an afterthought.  The Ninth Amendment’s quiet caveat has done much more to protect fundamental rights from government encroachment than its humble phrasing would suggest.

The Bill of Rights exists because a compromise was required to satisfy the Anti-Federalists and States that were cautious about ratifying into existence a federal government of broad powers.  The Ninth Amendment exists because another compromise was necessary to satisfy those in the Federalist camp who believed that an enumeration of rights would tend to negate recognition of rights left unmentioned.  Madison, Alexander Hamilton and other Federalists contended that a Bill of Rights was unnecessary because the federal government’s powers were delineated by and limited to those set forth in Article I, Section 8 [link to John Baker’s blog on this provision  – https://constitutingamerica.org/category/analyzing-the-constitution-in-90-days-2011-project/article-i-section-08-clause-01/ ] Hamilton’s Federalist 84 queried, “Why declare that things shall not be done which there is no power to do?”  But the Anti-Federalists, led by Thomas Jefferson, prevailed, and history has affirmed their wisdom as through expansive interpretations of the Necessary and Proper Clause and the Commerce Clause the mantle of federal power has come to envelope virtually every aspect of life from the light bulbs in our ceilings to the “individual mandate” to purchase health insurance.  The enumeration of rights stands as a bulwark against that tide of federal authority in the sphere of private life, speech and conduct.  On the other hand, the Ninth Amendment lifts its staying hand against the argument that these rights, and only these, stand between the citizen and his seemingly omnipotent (and, with digital technology, increasingly omnipresent) government.

That the rights enumerated in the first eight amendments are not all the rights we possess may strike one at first as a challenging notion.  For rights that went unenumerated at the time, but became “self-evident” (in the words of the Declaration) much later, consider the right to be free, expressed in the Thirteenth Amendment prohibiting slavery (1865); the right to vote (Amendment XIV in 1870); and the right to vote for women, which came a half-century later (Amendment XIX in 1920).  Except for the salutary effect of the Ninth Amendment, it might have been presumed that no other fundamental human rights existed outside of those enumerated in 1789 – that the “canon of human rights” was closed, not subject to further elaboration through constitutional amendment.  Or perhaps what is worse, it might have been supposed that all “rights” secured by the people through amendment of the Constitution subsequent to the Founding were not “fundamental” human rights, but only positive political rights secured through an effective application of the Social Contract.  For unenumerated fundamental rights that have yet to be affirmed in the written constitution, consider the right of conscience; the right of parents to raise and educate their children outside of the government school system (unrecognized in parts of Europe and elsewhere), or the right to be free from genetic manipulation.

Mark Twain quipped, “Some compromise is essential between parties which are not omniscient.” Our generations, and generations to come, will have to struggle with the meaning of rights enumerated and unenumerated, and with the wisdom of further constitutional amendments.  Thankfully, because the two great forces in the making of the Constitution were willing to admit their fallibility and broker resolutions, we have the wisdom of the Bill of Rights, and the wisdom of the “Bill of Other Rights” – the Ninth Amendment.

Steven H. Aden is the Senior Counsel for the Alliance Defense Fund, http://www.alliancedefensefund.org/ .

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The text of the Eighth Amendment, concise and plain, masks the fluidity that the Supreme Court has assigned to its words. The more intensely scrutinized portion, by far, is the prohibition against cruel and unusual punishments. There are two applications that have been particularly significant in recent years, the constitutionality of the death penalty and the application of the amendment to “enhanced interrogations.”

It would be fatuous for opponents of the death penalty to claim that the Framers understood the death penalty to be unconstitutional. The Constitution’s text belies such an assertion, because the Fifth Amendment three times makes it plain that the death penalty is a proper punishment for crime: “No person shall be held to answer for a capital…crime, unless on…indictment of a Grand Jury…; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…, nor be deprived of life, liberty, or property, without due process of law.” Moreover, the common law at various times recognized capital punishment for a couple of hundred criminal offense.  Given the additional availability of whipping, branding, ear cropping, and other such forms of corporal chastisement, the Framers’ understanding of “cruel and unusual punishment” was restricted to those torturous punishments that stood out for their infliction of extended periods of particularly gruesome pain for no end other than the infliction of that pain, and that were applied with such extreme rarity as to undercut any realistic claim that they served a moral purpose such as retributive justice or moral reformation. An example would be the rarely-used, but then still available, punishment of drawing and quartering applied in exceptional treason cases in Britain.

To further the cause of modern death penalty abolitionists, the Court was obliged to impress upon the Eighth Amendment an interpretive mechanism that could supersede the specific textual recognition of the death penalty’s legitimacy. That mechanism is the judicial matrix of “evolving standards of societal decency” that would “guide” the Court’s interpretation of the Eighth Amendment.  Using “cruel” in a qualitative sense and “unusual” in a quantitative sense, this approach allows for a judicial finding that punishments that fall into comparative disuse, either by change in legislation or even through failure of prosecutors to seek the death penalty or of juries to impose it on a regular basis for certain crimes, become violations of the Eighth Amendment. Particularly galling to the opponents of this approach, such as Justice Scalia, is that the procedural hurdles created for the imposition of the penalty in past cases themselves are much to blame for the (comparatively) infrequent use of the death penalty.

Although the Court has not finally found the death penalty to violate the Eighth Amendment, the end is clear. Death penalty jurisprudence has been one instance of ad hoc judicial law-making after another.  Capital punishment, the Court once opined, is applied too haphazardly.  When states responded with mandatory death penalty laws and other restrictions on jury discretion, the Court found those wanting in that juries must be able to exercise discretion to impose the death penalty or not.  However, further decisions then determined that the jury discretion must be subject to specific guidance. Moreover, the judge must have the power to override a jury’s imposition of the death sentence, but not the other way around.  Juries must be able to hear any and all mitigating personal evidence for the defendant, dredging up every aspect of the defendant’s life that would place some blame for the crime, somehow, on some person other than the defendant.  On the other hand, aggravating evidence, such as about the victim whose life was snuffed out, had to be very carefully limited.

As to the “evolving standards of decency” test, the Court once declared that the Eighth Amendment must not cut off the normal democratic process. Yet, more recently, the Court, led by Justice Kennedy, has taken great pains to do just that, overturning laws that provided the death penalty for older juveniles who commit particularly heinous murders and for non-homicide crimes. Kennedy, in particular, while dutifully declaring the contrary, seems intent on imposing through the Constitution his own vision of the moral and “decent” society. The Court earlier pronounced that the “Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered beliefs and responding to changed social conditions.” Once more assuming the role of philosopher-king, Kennedy in the last capital punishment case, Kennedy v. Louisiana (2008), rejected the idea that the death penalty could be expanded (though, in fact, the law at issue there, capital punishment for aggravated child rape, did not “expand” the death penalty).  After all, that would not fit Kennedy’s Hegelian march of “evolving standards of decency…on the way to full progress and mature judgment.” So, there is only one direction of evolution, regardless of what the people might enact, one that leads, Kennedy all but assured the abolitionists, to the eventual demise of the death penalty.

In Roper v. Illinois (2005), the juvenile death penalty case, Justice Kennedy resorted to comparing the United States unfavorably with European systems, as well as with other, even less savory, exemplars of justice, and, as he has done in some other areas of constitutional law, invoked the decisions of his fellow Platonic guardians on tribunals overseas.  Due to the rebukes launched by Justice Scalia in his dissents, the Court is less inclined these days to feature that line of internationalist argumentation as a basis for guidance of the American Constitution in a direction Justice Kennedy finds to be more civilized.

International standards have also been used in attempts to limit the use of techniques to interrogate suspected terrorists. Leaving aside specific anti-torture statutes or treaty obligations, note that the Eighth Amendment itself only prohibits cruel and unusual “punishment.” Not only is this limited to torture and other extreme actions; the Court in past cases repeatedly has held that it applies only to punishment, not to other actions by the government. Hence the challenged behavior must be directed at “punishing” the individual. This distinction between punishment and other objectives in the use of force against prisoners is one long established in many Western systems of law, and one that the Framers clearly understood.

If a prisoner brings a claim that excessive force was used in violation of the Eighth Amendment, he must show that this was for the purpose of punishment. If the force or condition of confinement was for another purpose, the Eighth Amendment is not implicated.  Thus, the state of mind of the persons conducting the interrogation becomes important. Did they do so for purpose of discipline, security, or information gathering, or did they do so simply to punish? That state of mind can be demonstrated circumstantially by a number of factors, such as the asserted purpose of the treatment and the degree of force used in relation to the many varied circumstances that triggered the interrogation, an evaluation that implicates the proportionality principle that lurks in Eighth Amendment jurisprudence. Only if the actions go beyond the asserted disciplinary or investigatory needs, might the treatment amount to cruel and unusual punishment. As the Court has said in several cases, the prisoner must show that the government agent acted “maliciously and sadistically for the very purpose of causing harm.”

The prisoner might assert claims that the government violated Fourth Amendment standards against unreasonable searches and seizures, or, more likely, nebulous Fifth Amendment due process standards against treatment that “shocks the conscience.” Even if a foreign terror suspect kept overseas is entitled to those constitutional protections as a matter of right (an issue not resolved even by the Court’s Boumediene decision that, for the first time, granted such detainees access to the writ of habeas corpus), they might not help him.  The “shocks-the-conscience” test is particularly difficult to confine, and the Court employs a utilitarian approach. The Justices have made it clear that it is not just the severity of the method, but the degree of necessity for the challenged action, that will determine whether the consciences of at least five of them are shocked.  In any event, whether or not the justices are suitably shocked under the Fifth Amendment, the Eighth Amendment does not apply to careful methods used demonstrably for the purpose of extracting information.

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

Guest Essayist: W. David Stedman and LaVaughn G. Lewis, Co-Editors, Our Ageless Constitution

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

 

 

The following is excerpted with permission from the book Our Ageless Constitution [p.41]

Trial By Jury Of Peers Under Laws By Consent Of The People

 

The Constitution’s Ultimate Protection For Individuals From Government

“What a fine…consolation is it for a man, that he can be can be subjected to no laws which he does not make himself, or constitute some of his friends to make for him…What a satisfaction…that he can lie under…no guilt, be subjected to no punishment, lose none of his property…the necessaries, conveniences, or ornaments of life, which Providence has showered on him, but by the judgment of his peers, his equals, his neighbors…”

–John Adams

 

Americans often say they’re “innocent until proven guilty.” Most, however, give little thought to the very real Constitutional protections devised by the Founders for securing individual liberty from intrusion by arbitrary government power. Incorporated into their Constitution were two great methods of defending liberty:

 

  • Representation in the Lawmaking and Taxing Body

The PEOPLE, through their elected representatives, choose the laws by which they agree to be governed.

  • Trial By A Jury Of Peers

The PEOPLE, through a jury of twelve peers, have the final say about their guilt or innocence under those laws.

 

The people who settled this nation and who formed its government believed strongly that these were the two most important principles on which to build a Constitution for a free people.

As a matter of fact, the Continental Congress of 1774 had declared them to be the bulwarks of individual freedom and essential to the defense of all other freedoms, saying:

“The first grand right is that of the people having a share in their own government by their representatives chosen by themselves, and…of being ruled by laws which they themselves approve, not by edicts of men over whom they have no controul…

“The next great right is that of trial by jury. This provides that neither life, liberty nor property can be taken from the possessor, until twelve of his…countrymen…shall pass their sentence upon oath against him.”

John Adams called these two “popular powers…the heart and lungs…and without them,” he said, “the body must die…the government must become arbitrary.”

 

The  7th Amendment Defined

The Sixth Amendment assures that Americans receive a jury trial in criminal cases.  Similarly, the 7th amendment guarantees that same right for Americans in civil cases.  Unlike criminal cases, civil suits don’t require unanimity of the jurors – a simple majority can suffice – and per its terms, the 7th Amendment also provides that any conclusions of fact reached by the jurors cannot be set aside by a judge.

 

The following is excerpted with permission from the book Our Ageless Constitution [p.176]

Our Ageless Constitution

“The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its components are beautiful, as well as useful; its arrangements are full of wisdom and order…”

–Justice Joseph Story  –  Commentaries on the Constitution of the United States, 1789

 

The Qualities of Agelessness

America’s Constitution had its roots in the nature, experience, and habits of humankind, in the experience of the American people themselves-their beliefs, customs, and traditions, and in the practical aspects of politics and government. (See: Part I-Roots and Genius) It was based on the experience of the ages. Its provisions were designed in recognition of principles which do not change with time and circumstance, because they are inherent in human nature.

“The foundation of every government,” said John Adams, “is some principle or passion in the minds of the people.” The founding generation, aware of its unique place in the ongoing human struggle for liberty, were willing to risk everything for its attainment. Roger Sherman stated that as government is “instituted for those who live under it…it ought, therefore, to be so constituted as not to be dangerous to liberty.”And the American government was structured with that primary purpose in mind—the protection of the people’s liberty.

Of their historic role, in framing a government to secure liberty, the Framers believed that the degree of wisdom and foresight brought to the task at hand might well determine whether future generations would live in liberty or tyranny. As President Washington so aptly put it, “the sacred fire of liberty” might depend “on the experiment intrusted to the hands of the American people.” That experiment, they hoped, would serve as a beacon of liberty throughout the world.

The Framers of America’s Constitution were guided by the wisdom of previous generations and the lessons of history for guidance in structuring a government to secure for untold millions in the future the unalienable rights of individuals.

W. David Stedman is the retired Chairman of Stedman Corporation. Stedman was a founder of the National Center for America’s Founding Documents and the National Foundation for the Study of Religion and Economics. Stedman is Co-Editor with LaVaugn G. Lewis of Our Ageless Constitution and Rediscovering the Ideas of Liberty. A frequent lecturer on topics relating to the Constitution, America’s free enterprise system and role of the “business statesman,” Stedman holds earned degrees from Duke, Harvard, and Georgetown Universities and is a Distinguished Alumnus of Duke University.

LaVaughn G. Lewis is a former teacher. She served at the Stedman Corporation as Assistant to the Chairman and as researcher and writer. She is Co-Editor with W. David Stedman for Our Ageless Constitution and Rediscovering the Ideas of Liberty, and is a graduate of Pfeiffer University.

Guest Essayist: Marc. S. Lampkin, a Vice President at Quinn Gillespie

Amendment VI

 

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Perhaps more than any other Amendment, the 6th Amendment protects the liberties of the American people most directly.  It is so effective in carrying out this goal that most Americans give its protections little thought or consideration.

By setting up the framework which limits the ability of the government to arbitrarily accuse and incarcerate the citizens at large the 6th Amendment minimizes the likelihood that criminal charges will be filed against political enemies of the state. In America no one can be arrested, tried, sentenced and imprison without it occurring under a set of rules in public, with a written record that can be accessed by the public and members of the media.  Prior to the adoption of the 6th Amendment, these protections didn’t exist for large parts of Europe and Asia.

There are seven elements of the 6th Amendment:

 

Speedy Trial:  As recognized by the Supreme Court this provision has three obvious benefits to the accused

  1. To prevent a lengthy period of incarceration before a trial. In other words the accused won’t be giving unlimited detention without having been tried and convicted.
  2. To minimize the effects of a public accusation. Undue suffering from a false accusation shouldn’t occur for more than an absolute minimum amount of time.
  3. To ensure that too much time didn’t lapse making it harder for the accused to defend himself either as a result of death or sickness of witnesses or due to loss of memories by needed witnesses.

 

Public Trial: Under its terms the trial must be open to the public and accessible by the media.  Interestingly, this right predates English common law and possibly even the Roman legal system and has been thought to be essential to ensure that the government can’t use the court system as an instrument of persecution because the knowledge that every criminal trial is open and accessible to the public operates as an effective restraint.

Impartial Jury: Unlike a trial in which a judge or panel of judges make a decision, a jury trial is a legal proceeding in which the jurors make the decision.  Interestingly the size of the jury is universally assumed to be 12 but in state criminal trials it can be as few as 6 individuals and in Ancient Greece a criminal trial might include over 500 persons in the jury.  No matter the actual size, it is essential that the individuals who make up this jury be free of bias and prejudice.  They should be representative of the population at large from which the accused comes from but should not be his immediate family or close friends.

Notice of Accusation: It is not sufficient that the state merely take the time to accuse an individual.  The government must also inform the accused of the specific nature and cause of the accusation and do so in a way which makes it reasonably possible for the accused to mount a defense against the charge.  Additionally all of the charges must be outlined and must include all ingredients necessary to constitute a crime.

In other words, the government can’t secretly charge you with speeding or tax fraud and yet not let you know specifically how or when you committed the crimes.  They must be specific and precise in order to make it possible for you to explain, justify or otherwise defend yourself against the charges.

Confrontation: The right to directly question or cross-examine witnesses who have accused a defendant in front of the jury is a fundamental right which like the impartial jury and public trial requirement pre-dates the English legal system.  A variation of this right is referenced in the Book of Acts which describes the Roman governor Porcius Festus, discussing the proper treatment of his prisoner the Apostle Paul: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.”

Compulsory Process: Like the confrontation clause, the right of “Compulsory Process” protects Americans from unfair criminal accusations by allowing them to be able to obtain witnesses who can testify in open court on their behalf. Even if a witness does not wish to testify, compulsory process means that the state can subpoena him and force the witness to testify or be in contempt of court.  If a person did not have compulsory process, witnesses who know of your innocence but who simply didn’t wish to be involved could lead to a guilt conviction of an innocent person.  Embarrassment or fear are not legitimate excuses to avoid compulsory process because this right is designed to ensure the accused has the opportunity to present his strongest defense before the jury.

Counsel:  Perhaps the most meaningful of all of the 6th Amendment rights, is the right to select the attorney or counsel of your choice to represent you in a criminal case.  While much attention has been focused on the issue of when and whether every accused person must be provided with a minimally competent attorney, the framers felt that the greatest threat was not being able to hire the advocate of your choice.  As early as the year 1300 there was an advance trade made up of individuals who represented or advocated on behalf of accused individuals or individuals who needed to make special pleadings before the government.  At the time of the founding of the United States most of the colonies had adopted a policy of allowing accused individuals in all but the rarest cases the right to hire the counsel of their choice to aid in their defense.  In other words the framers emphasized the importance of the accused having the option either through his own resources or through that of his friends and family to hire the best and most talented advocate and to prevent this would be considered an injustice.  Even though modern litigation over this provision focuses more on the need to insure that every one is provided an attorney “even if they can not afford one” the greatest benefit of this provision is that every individual may choose to expend any or all of their resources to find the most capable lawyer they desire.

The 6th Amendment embodies much of the Founder’s concerns about the potential abuse of the individual by the government.  The founders were quite familiar with the list of abuses by the English monarch.  It is interesting to note that of the 26 rights mentioned in the first through the eighth amendments, 15 of them have something to do with criminal procedure and notably 7 of those 15 are found in this amendment.

Marc S. Lampkin is a Vice President at Quinn Gillespie

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment V to the Constitution, among longest in the Bill of Rights, is also one of the richest in terms of content.  A transitional amendment, it is unique in that it encompasses restraints on both criminal and civil powers of government—transitionally linking the two.  The first half of the amendment serves as the bedrock of protections for accused individuals under the criminal code, while the second half lays out the bedrock principles underlying private property rights.

Americans are all-too familiar with the criminal elements within the 5th Amendment.  These were borne out of the principles of English common law, stemming from the Magna Carta—principles that the revolutionary founders had seen eroded by the Crown prior to and during the War for American Independence.  Given the tremendous difficulty many of the founders had in seeing power concentrated in a single federal government, they felt it important enough to further constrain those powers and enshrine basic protections to accused persons within the Bill of Rights.

The assurance of a grand jury indictment before trial, the assurance of not being subjected to perpetual trial should the government not achieve a guilty verdict, the assurance of not being made to testify against oneself, these all had roots in English common law—very basic rights that represent a check on government power run amok.  The idea of the grand jury process helps to ensure that a single government official cannot arrest an individual without merit.

The prohibition against “double jeopardy” insures that these same government officials cannot hold an individual in perpetuity, for multiple trials, when a jury of his or her peers has found them not guilty of a particular crime.  And the prohibition against self-incrimination is a recognition of the dignity of the individual in not being forced to act against his own interest in self-preservation and liberty.

The statement on due process really forms the transition between civil and criminal in the 5th Amendment.  In terms of criminal jurisprudence, obviously an individual accused of a crime must be afforded some fair process by which his case is heard, ensuring that his team is able to amount a fair defense.

But then the 5th Amendment grabs onto a core value of the American founding:  the importance of private property rights.  Having its basis in John Locke’s theory that government’s role is to protect life, liberty, and property, Jefferson has originally written that our inalienable rights were life, liberty, and the pursuit of property.  Private property undergirds the foundation of the Republic—scholars such as Hernando DeSoto have written that property rights are essential to the stability and prosperity of any free society.

As it happens, it is these rights that have come under the greatest siege in the last century and a half—eroded in an incredible number of ways, largely because they are the among the least understood rights.  As it happens, the Bill of Rights sets out very simple protections.

Government has the power to take private property from people.  We cede that power to it in the 5th Amendment.  But three things have to happen in order for that “taking” to be lawful:

  1. First, the taking has to be for a “public use”. Traditionally, this was for things like public buildings, roads, even public spaces like parks;
  2. Due Process has to be accorded to the property owner.  They have to be given a fair hearing or process by which they can negotiate with the government, perhaps to avoid the taking entirely;
  3. Should 1 and 2 be satisfied, “just” compensation has to be paid to a property owner, generally what a willing buyer would pay to a willing seller.

For many years, litigation and legal debates arising under the 5th Amendment’s property rights provisions centered on what constituted a taking and whether or not property owners had been afforded due process—and at which point a landowner could seek compensation from the government.

A government need not physically occupy or affirmatively confiscate property, either.  As government has grown, the reach of that government into the daily lives of property owners has similarly grew—and the concept of “regulatory takings” was made manifest.  In the seminal 1922 Supreme Court case of Pennsylvania Coal v. Mahon the High Court stated clearly that when a regulation goes “too far” it will be considered a taking, triggering the 5th Amendment’s requirements.

Thus, under laws like the Clean Water Act and the Endangered Species Act, when a piece of property is restricted from substantially all uses, the landowner can seek just compensation for the taking of his property under the 5th Amendment.

What has come to the forefront in recent years is the long-time debate over what constitutes a “public use”.  In the 2005 Supreme Court case, Kelo v. City of New London, the High Court ruled that the home that elderly Suzette Kelo had lived in since she was a girl could be taken by the City of New London, CT to make way for a parking lot for a Pfizer manufacturing facility.

The public outrage was palpable—after all, the taking would directly benefit a private entity, the Pfizer Corporation, and not constitute a “public use” as stated in the 5th Amendment.  People wondered how the Supreme Court could have ruled this way.

The problem was that this decision was the end-result of 130 years of Supreme Court erosion of the “public use” doctrine.  Starting with a line of cases in which the High Court ruled that it was appropriate for government entities to take private property for quasi-private/quasi-public utility companies, and leading into years of cases in which the court decided that it was OK for localities to condemn wide swatches of private property in the name of urban redevelopment, we were left with an entirely different interpretation of “public use”.

By 2005, the Supreme Court’s precedent said that so long as there was a nebulous “public benefit,” the Constitution’s requirement of a taking for “public use” was satisfied.  Generally, this means that if there is a net increase in a city’s tax rolls, the 5th Amendment is satisfied.

The problem wasn’t that the High Court was making new law in Kelo.  The problem was that the High Court didn’t have the courage to over-rule years of bad law.

The 5th Amendment’s property rights protections are constantly under siege.  If we hope to keep the Republic, we must defend those protections earnestly and vigorously.

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/

Guest Essayist: Jeffrey Reed, a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law, and has taught constitutional law at Western Kentucky University in Bowling Green, Kentucky

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. It also requires warrants issued by courts to be supported by probable cause.

Debates surrounding Fourth Amendment law involve balancing an individual’s right to privacy against law enforcement’s need to aggressively investigate crime. As crime rates soar, the legal trend has been to give police more leeway under the amendment.  However, it has not been without debate. One only need point to the controversy surrounding the Patriot Act, where police were granted expanded powers to wiretap phone conversations, intercept emails, etc., without a warrant. No doubt, the Fourth Amendment has created a growing body of law, affecting all Americans.

The text says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The framers of the Constitution adopted the amendment in response to the writs of assistance (a type of blanket search warrant) that were used during the American Revolution.

Before one can answer whether a search is reasonable, it must be established that there was, indeed, a search under the meaning of the Fourth Amendment. In Katz v. United States, the Supreme Court ruled that there is a search if a party has a “reasonable expectation of privacy” in the area searched.

In Katz, the government wiretapped a telephone booth. The court found that it was an unreasonable search because the defendant expected his phone             conversation to be private. The court used a “reasonable man” standard. Would society believe that Katz’s expectation of privacy was reasonable? The court held that the government should have obtained permission from a court, via a search warrant, before wiretapping the phone booth.

In order to obtain a warrant, an investigating officer must state, under oath, that he has reason to believe that the search will uncover criminal activity or evidence of a crime. A judge must find that probable cause exists to support the warrant. The Supreme Court has ruled that the term probable cause means that there is a “practical, nontechnical” probability that incriminating evidence is involved.”

The standards of probable cause differ for an arrest and a search. A “seizure” under the Fourth Amendment occurs when a person is arrested and taken into custody. The officer must have probable cause to seize the person. Police have probable cause to make an arrest when the facts they possess, based on “reasonably trustworthy information” would lead a reasonable person to believe that the person arrested had committed a crime.

Not every incident involves an “arrest” requiring probable cause. Under Terry v. Ohio, police may conduct a limited warrantless search (frisk them) on a level of suspicion less than probable cause when they observe “unusual conduct” that leads them to reasonably believe “that criminal activity may be afoot” and that the suspect is presently dangerous to the officer or others.

The Fourth Amendment also prohibits the unreasonable seizure of personal property without a warrant. A seizure of property occurs when there is meaningful interference by the government with an individual’s possessory interests.

Courts enforce the Fourth Amendment via the exclusionary rule. Any evidence obtained in violation of the amendment cannot be used to prosecute the defendant at trial. The defense attorney must move the court to suppress the evidence.

Like any rule, there are exceptions. No warrant is needed if a person agrees to the search. Likewise, if an officer is legally in a place and sees objects in “plain view” that he has probable cause to believe are evidence of a crime, he may seize them without a warrant. “Open fields” such as wooded areas or pastures may be searched without a warrant (there’s no reasonable expectation of privacy in them). And so on and so forth.

The most recent exception was handed down by the Supreme Court on May 16th.  In a case originating in my state of Kentucky, the Court created a new exception to the warrant requirement. Now, police may enter a home without a warrant when they have reason to believe that drug evidence is being destroyed. The Kentucky police acted properly when they smelled marijuana at an apartment door, knocked loudly, announced themselves, and kicked in the door.

Jeffrey Reed, a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law. Before beginning his music career, he practiced law and  taught constitutional law at Western Kentucky University in Bowling Green, Kentucky, where he resides.

Guest Essayist: Robert Chapman-Smith, Instructional Design Associate at the Bill of Rights Institute

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

In the realm of constitutional law, obscurity knows no better companion than the Third Amendment of the U.S. Constitution. No direct explication of the Amendment appears in the reams of opinions the Supreme Court has issued since 1789. In fact, save for Engblom v. Carey (1982), no explication offered by the whole of America’s judicial branch directly engages the tenets of the Amendment. And yet, the significance of the Third Amendment lives on as a jewel that has an inherent value which cannot be augmented or diminished by present-day utility.[1]

The common law lineage of the Third Amendment stretches deep into history. Early Anglo-Saxon legal systems held the rights of homeowners in high regard—viewing firth (or peace) to be not a general thing encompassing the entire community, but rather a specific thing comprised of “thousands of islands . . .  which surround the roof tree of every householder . . . .”[2] But Saxon-era legal institutions never had to contend with quartering issues. This is due primarily to the absence of standing armies and the reliance on fyrd—a militia to which all abled bodied men owed service for a period normally not to exceed forty days in a given year. Not until the Norman Conquests of 1066 did popular grievances against quartering (also known as billeting) begin to manifest.[3]

Attempts to codify provisions against quartering predate the Magna Carta—most notably appearing in 12th century charters like Henry I’s London Charter of 1131 and Henry II’s London Charter of 1155.[4] But early attempts to prevent involuntary quartering by law proved inadequate, especially as armed conflicts transitioned from feudal Saxon-era fyrds to monarchs hiring professional soldiers. Men of questionable character comprised the bulk of these mercenary armies. Kings pressed criminals into service in exchange for having crimes and misconduct forgiven. Though they fought well, these men would draw little distinction between friend and foe and would continually mistreat civilians.[5]

As time drew on, other efforts to quell quartering fell well short of success.[6] The problem compounded exponentially under Charles I, who engaged in expensive and wasteful wars that spanned across Europe. Charles I conducted these wars without receiving approval from Parliament. Parliament balked at the idea of financing Charles’ wars—forcing the soldiers in Charles’ army to seek refuge in private homes.[7] By 1627, the problem became severe enough that Parliament lodged a formal complaint against quartering in its “Petition of Right.”

But the “Petition of Right” did nothing to change quartering practices. During the English Civil War, both Royalists and Roundhead armies frequently abused citizens through quartering—despite the official proclamations that damned the practice. During the Third Anglo-Dutch war, conflicts between soldiers and citizens erupted over forced quartering.[8] In 1679, Parliament attempt to squelch concerns by passing the Anti-Quartering Act, which stated, “noe officer military or civil nor any other person whatever shall from henceforth presume to place quarter or billet any souldier or souldiers upon any subject or inhabitant of this realme . . . without his consent . . . .”[9] James II ignored the Act and the continued grievance over billeting helped propel England’s Glorious Revolution. Upon William II’s ascension to the throne, Parliament formulated a Declaration of Rights that accused James II of “quartering troops contrary to law.” Parliament also passed the Mutiny Act, which forbade soldiers from quartering in private homes without the consent of the owner. Parliament extended none of these limited protections to the colonies.[10]

In America, complaints against quartering began surfacing in the late 17th century. The 1683 Charter of Libertyes and Privileges passed by the New York Assembly demanded that “noe freeman shall be compelled to receive any marriners or souldiers into his house . . . provided always it be not in time of actuall warr in the province.”[11] The quartering problem in the colonies grew exponentially during the mid-18th century. The onset of the French-Indian War brought thousands of British soldiers onto American shores. Throughout much of Europe, the quartering issue had dwindled due to the construction of permanent barracks. Colonial legislatures recoiled at the thought of British soldiers having such accommodations and repeatedly denied British requests for lodging.

The close of the French-Indian War brought about even more challenges. In an attempt to push the cost of defending the colonial frontier onto the colonists, Parliament passed the Quartering Act of 1765. The Act stipulated that the colonies bear all the costs of housing troops. It also legalized troop use of private buildings if barracks and inns proved to be insufficient quarters. In an attempt to secure the necessary funding for maintaining the army, Parliament passed the Stamp Act—“as a result, the problems related to the quartering of soldiers became entwined with the volatile political issue of taxation without representation.”[12]

Quartering issues continued to surface, worsening gradually with each occurrence. In 1774, Paliament passed a second Quartering Act that was more arduous than the first. Due to its specific legalization of quartering in private homes, the second Quartering Act would become one of the “Intolerable Acts” lodged against the King and Parliament. Grievances against British quartering practices appeared in a series of declarations issued by the Continental Congress: the Declaration of Resolves, the Declaration of Causes and Necessities, and the Declaration of Independence.[13]

After successfully gaining independence from Britain, many states enacted new constitutions or bills of rights that offered protection against involuntary quartering. As had been the case in England, the quartering issue was entwined with the maintenance of a standing army. The 1787 Constitutional Convention, and the Constitution that arose from it, gave Congress the power to raise and support armies. The Constitution focused little attention on individual rights. That omission troubled many delegates both at the Convention in Philadelphia and at the ratification debates throughout the states.

Chief among the concerns pertaining to the military provisions of the Constitution was a fear that the new American government might be as oppressive as the British one it aimed to replace. As Patrick Henry noted:

“one of our first complaints, under the former government, was the quartering of troops upon us. This was one of the principal reasons for dissolving the connection with Great Britain. Here we may have troops in time of peace. They may be billeted in any manner—to tyrannize, oppress, and crush us.”[14]

The Anti-Federalists routinely stressed the Constitution’s lack of protection against standing armies and involuntary quartering. Many states echoed the concerns of the Anti-Federalists. Of the ninety types of provisions submitted to Congress, only seven appeared more frequently than provisions addressing quartering.

But James Madison and the Federalists viewed such provisions as unnecessary. Any Constitution that provides a democratic process for the maintenance of a standing army will, by consequence, solve any quartering issues that may arise. As Madison noted during the Virginia ratification debates:

“He says that one ground of complaint, at the beginning of the revolution, was, that a standing army was quartered upon us. This is not the whole complaint. We complained because it was done without the local authority of this country—without the consent of the people of America.”[15]

Madison also expressed skepticism about the need for a bill of rights. In a letter to Thomas Jefferson, Madison eschewed bills of rights as “parchment barriers” easily trampled by an overwhelming majority in a respective state.[16] Nevertheless, Madison took up the challenge of constructing a federal bill of rights and among his proposed amendments, which he derived from the previously mentioned state proposals, was an amendment addressing quartering.

The House debate on the Amendment was short. A few members wished to edit the text of the Amendment, imbuing in it a stronger protection of the homeowner, but all such measures were defeated and the Amendment became one of the ten enshrined in the Bill of Rights.[17]

As mentioned before, the Third Amendment is one of the least litigated provisions of the Constitution. Perhaps this lack of legal cases is due to the self-evident nature of the Amendment. As Justice Joseph Story notes, “this provision speaks for itself. Its plain object is to secure the prefect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion.”[18] Yet the absence of litigation does not itself entail that the Amendment has at all times existed without violation.

Involuntary quartering on the part of United States soldiers appears to have happened during the War of 1812. While Congress did declare war on England, thus giving itself the authority to regulate quartering, it failed to provide any regulations governing the practice of billeting.[19] After the war, Congress did provide payment to those whose property was used “as a place of deposit for military or naval stores, or as barracks . . .”[20]

The Civil War brought about another instance of quartering under the Third Amendment—though its case is substantially more complicated than the War of 1812. Congress did not declare war on the Confederacy and it is unclear how periods of insurrection affect the Third Amendment’s distinction of peace and war. Regardless, even if a de facto state of war existed, Congress never issued any regulations governing the practice of quartering. Yet instances of the Union Army quartering in private homes appear in both loyal and rebel states.[21] The question of whether this action violated the Third Amendment is unsolved and is likely to remain so, as no Third Amendment case ever arose out of the Civil War era.

The lack of litigation and judicial action has left open some interesting questions about the applicability of the “self-evident” Third Amendment. One of these questions involves the Amendment’s applicability to the states.  Today, America’s troops enjoy barracks and accommodations so sufficient that it seems unlikely that troops would ever need to be garrisoned in a private home. Yet the question remains that, if an issue did somehow arise, would a state’s National Guard regimen be obligated to follow the Third Amendment (if no such provision existed in a state’s Constitution)? That question arose in 1982 with Engblom[22], yet the question still lacks a definitive answer.

Though it is sometimes ridiculed and is rarely discussed, the Third Amendment enshrines a right with a common law history as rich as any. Quartering abuses committed against the colonists propelled America into the Revolutionary War. After victory, the Founders worked to protect the public against any future abuses. The onset of the modern military tactics has seemingly thrown the usefulness of the Third Amendment into doubt, yet the Amendment still provides interesting and unanswered questions about federalism and the interaction of overlapping constitutional protections.


[1] This sentence paraphrases a metaphor from Grounding for the Metaphysics of Morals in which Immanuel Kant describes a good will as “a jewel … which has its full value in itself. Its usefulness or fruitlessness can neither augment nor diminish this value.”

[2] Bell, Tom W.. “The Third Amendment: Forgotten but not Gone.” William and Mary Bill of Right’s Journal 1, no. (1993): 117-118.

[3] Fields, William S., Hardy, David T., “The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History .” American Journal of Legal History 35, no. (1991): 395-397.

[4] English Historical Documents: 1042-1189, at 945 (David C. Douglas & George W. Greenway eds., 1953) (“Let no one be billeted within the walls of the city, either [a soldier of the King’s household] or by the force of anyone else.”)

[5] Fields & Hardy supra note 3 at 403

[6] The late Tudors had a bit of success expanding and improving the traditional militia system, but this system collapsed under James I, a pacifist who favored the repeal of militia statutes.

[7] Hardy, B. Camron. “A Free People’s Intolerable Grievance: The Quartering of Troops and the Third Amendment.” Virginia Calvacade 33, no. 3 (1984): 127

[8] Fields & Hardy supra note 3 at 403 – 405

[9] Great Britain. Statutes of Great Britain. London: , 1950. Print.

[10] Bell supra note 2 at 123

[11] Schwartz,Bernard. Roots of the Bill of Rights. Bernard Schwartz. 1980

[12] Fields & Hardy supra note 3 at 417

[13] Id at 417-18

[14] The Founder’s Constitution. 1 ed. 5, Amendments I-XII. Philip B. Kurland and Ralph Lerner. Indianapolis: Liberty Fund, Inc., 217

[15] Id

[16] Fields & Hardy supra note 2 at 424

[17] Kurland & Lerner supra note 14 at 217-18

[18] Id at 218

[19] Bell supra note 2 at 136

[20] Little, Charles. “Statues at Large Vol. 3.” A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875 . Available from http://memory.loc.gov/ammem/amlaw/lwsllink.html. Internet; accessed 22 May 2011.

[21] Bell supra note 2 at 137

[22] Id at 141-142

 

Robert Chapman-Smith is the Instructional Design Associate at the Bill of Rights Institute, an education non-profit based in Arlington, Virginia. He holds a Bachelor of Arts in Philosophy from Hampden-Sydney College.

Guest Essayist: David B. Kopel, Research Director at the Independence Institute, and Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Like most of the Bill of Rights, the Second Amendment was part of a conciliatory program by the Federalists, as promised by James Madison at the Virginia ratifying convention. For the most part, the Bill of Rights consisted of assurances that the new federal government could not do things which the Federalists never wanted to do anyway, and which the Federalists believed were not within the powers which had been granted to the new government.

For example, the Federalists had no wish to establish a national religion, and they believed that Congress’s enumerated powers (e.g., to establish post offices, to regulate interstate commerce) could not possibly be construed so as to give Congress the power to establish a religion. Accordingly, Madison and the other Federalists were perfectly happy to add a constitutional amendment plainly stating that Congress could not establish a religion.

The Second Amendment was of a similar character. Based on knowledge of history from ancient times to the present, the Federalists and the Anti-Federalists agreed that disarmament was a direct path to slavery. Indeed, the heavy-handed English government of King George III had precipitated the American Revolution through an aggressive gun control program in 1774-76: embargoing the import of guns and gunpowder by the American colonies, confiscating the guns and gunpowder which some towns stored in central repositories (the repositories kept guns for militiamen who could not afford their own gun, and provided merchants a place to keep reserve quantities of gunpowder in a fireproof building), putting Boston under military occupation and confiscating the firearms of the Bostonians, using the military to conduct house-to-house searches for firearms at Lexington and Concord, and then naval bombardment and destruction of coastal New England towns which refused to surrender all their arms.

Accordingly, the Second Amendment’s assurance that the federal government could never disarm the people was uncontroversial.

Where Madison had refused to budge was on the subject of federal powers over the militia. The original Constitution, in clauses 15-16 of Article I, section 8, had given Congress broad authority to summon the militia into federal service, and to provide for the organization, arming, and disciplining of the militia. At the state ratifying conventions, Anti-Federalists had strongly objected to these new federal powers. But Madison refused to limit federal militia powers, just as he refused all other proposals to constrict the federal powers granted by the new Constitution.

When U.S. Representative James Madison introduced his proposed Bill of Rights into the first session of the United States House of Representatives in 1789, he proposed that the right to arms language be inserted into Article I, Section 9, after Clause 3. Clauses 2 and 3 protect individuals against suspension of the writ of habeas corpus, bills of attainder, and ex post facto laws. Madison also suggested that what were to become the First, Third, Fourth, Eighth, and Ninth Amendments, portions of the Fifth Amendment (double jeopardy, self-incrimination, due process, just compensation), and portions of the Sixth Amendment (speedy public trial, right to confront witnesses, right to be informed of charges, right to favorable witnesses, right to counsel) also be inserted there.

Madison proposed that the remainder of the Fifth (grand jury), Sixth (jury trial, in the form of a declaration that “trial by jury as one of the best securities to the rights of the people, ought to remain inviolate”), and the Seventh Amendment (civil jury trial) be inserted into Article III, which deals with the judiciary. He recommended that what would become the Tenth Amendment be inserted as a new article between Articles VI and VII. His proposed limitation on congressional pay raises was to be inserted into Article I, Section 6, which governs congressional pay. (This was eventually ratified as the Twenty-seventh Amendment in 1992.)

If Madison had seen the proposed Second Amendment as a limitation on federal militia powers, then he would have placed the Amendment in the part of the Constitution which defines federal militia powers. (Article I, § 8, clauses 15-16.) Instead, he placed the proposed language in the portion of the original Constitution which guaranteed individual rights.

However, the House objected that interpolating changes into the original Constitution would imply that the original Constitution had been defective. So Madison’s changes were eventually appended to the Constitution, as amendments following the main text.

For the speech introducing the Bill of Rights into the House of Representatives, Madison’s notes contain the following: “They relate first to private rights—fallacy on both sides—espec as to English Decln. Of Rights—1. mere act of parl[iamen]t. 2. no freedom of press—Conscience…attaineders—arms to protest[an]ts.” James Madison, “Notes for Speech in Congress Supporting Amendments,” June 8, 1789, in 12 Madison Papers 193-94 (Robert Rutland ed., 1979) (bracketed letters not in original).

The English Declaration of Rights, enacted by Parliament in 1689, had declared that “The subjects which are protestants may have arms for their defence suitable to their conditions as and allowed by law.”

So Madison believed that the English Declaration of Rights was defective because it was a mere act of Parliament, and thus could be over-ridden by a future Parliament. Further, the English Declaration of Rights did not go far enough, in part because its arms guarantee protected only Protestants (98% of the English population at the time).

As introduced by Madison, the Second Amendment read: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

After approval by the House, the Second Amendment was considered by the Senate. The Senate (1) removed the religiously scrupulous clause and the phrase “composed of the body of the people,” (2) replaced “the best” with “necessary to the,” and (3) rejected a proposal to add the words “for the common defence” after “the right of the people to keep and bear arms.” 1 Journal of the First Session of the Senate 71, 77 (1820).

The rejection of the “common defence” language made it clear that the Second Amendment right to arms was not solely for militia service.

The middle clause, about a well-regulated militia, was moved so that it became the introductory clause. As enacted, the Second Amendment had a form typical in state constitutions of 18th and 19th centuries: an introductory, purpose clause announced an important political principle, and then an operative clause declared the legal rule.

For example, Rhode Island’s 1842 Constitution declared: “The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .” Eugene Volokh, “The Commonplace Second Amendment,” 73 NYU Law Review 793 (1998).

The right which is guaranteed in the operative clause is not limited by the purpose clause. In Rhode Island, the purpose clause refers to “the press,” but the operative clause protects the speech rights of “any person,” not just journalists. Likewise, the Second Amendment right does not belong only to the militia; it belongs to “the People,” just as the First Amendment right to assemble and the Fourth Amendment right to freedom from unreasonable searches and seizures, are rights of “the People,” and therefore rights belonging to all individual Americans.

Tench Coxe, a political ally of Madison who would later serve in Madison’s sub-cabinet, penned the most comprehensive section-by-section exposition on the Bill of Rights published during its ratification period. Regarding Madison’s proposed right to arms amendment, Coxe wrote: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.” Federal Gazette, June 18, 1789, p. 2.

After Coxe, the best evidence of the original public meaning of the Second Amendment comes from the most influential and widely used legal treatise of the early Republic, the five-volume, 1803 American edition of William Blackstone’s Commentaries on the Common Law of England, edited and annotated by the Virginia jurist St. George Tucker (1752-1827). Tucker was a militia colonel during the Revolutionary War, a Virginia Court of Appeals judge, a federal district judge, and professor of law at the College of William & Mary. Regarding the Second Amendment, Tucker’s 1803 treatise was essentially verbatim from his 1791-92 lecture notes at the College of William & Mary, almost immediately after the Second Amendment had been ratified.

Tucker’s Blackstone was not merely a reproduction of the famous English text. It contained numerous annotations and other material suggesting that the English legal tradition had undergone development in its transmission across the Atlantic, generally in the direction of greater individual liberty. Tucker’s treatment of Blackstone’s discussion of the right to arms was typical. According to Tucker: “The right of the people to keep and bear arms shall not be infringed. Amendments to [Constitution], and this without any qualification as to their condition or degree, as is the case in the British government.” St. George Tucker, 1 Blackstone’s Commentaries, with Notes of Reference to the Constitution and Laws of the Federal Government of the United States, and of the Commonwealth of Virginia 143-44 (1803) (reprinted 1996 by The Lawbook Exchange).

Tucker’s Blackstone also included a lengthy appendix on the new American constitution. This appendix was the first scholarly treatise on American constitutional law and has been frequently relied upon by the United States Supreme Court and scholars. Tucker’s primary treatment of the Second Amendment appeared in the appendix’s discussion of the Bill of Rights:

A well regulated militia being necessary to the security of a free state, the right of the people to keep, and bear arms, shall not be infringed.

. . .This may be considered as the true palladium of liberty . . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

Appendix to Vol. 1, Part D, p. 300.

Tucker’s appendix also mentioned the right to arms in the context of Congressional power over the militia. Noting that the Constitution gives Congress the power of organizing, arming, and disciplining the militia, while reserving to the states the power to train the militia and appoint its officers, Tucker asked whether the states could act to arm and organize the militia if Congress did not. He argued that the language of the Second Amendment supported the states’ claim to concurrent authority over the militia:

The objects of [the Militia Clauses in Article I] of the constitution, . . . were thought to be dangerous to the state governments. The convention of Virginia, therefore, proposed the following amendment to the constitution; “that each state respectively should have the power to provide for organizing, arming, and disciplining it’s own militia, whenever congress should neglect to provide for the same.” . . . [A]ll room for doubt, or uneasiness upon the subject, seems to be completely removed, by the [second] article of amendments to the constitution, since ratified, viz. ‘That a militia [sic] being necessary to the security of a free state, the right of the people to keep, and hear arms, shall not be infringed.’ To which we may add, that the power of arming the militia, not being prohibited to the states, respectively, by the constitution, is, consequently, reserved to them, concurrently with the federal government.

Id., pp. 272-73.

Tucker’s treatise was studded with other references to the right to arms. For example, Tucker contended that Congress’s power to enact statutes that are “necessary and proper” for carrying into effect its other enumerated powers, U.S. Const. art. I, sec. 10, cl. 8, did not include the power to make laws that violated important individual liberties. Such laws could not be deemed “necessary and proper” in the constitutional sense, argued Tucker; therefore, they were invalid and could be struck down by a federal court. Tucker chose as an illustration a hypothetical law prohibiting the bearing of arms:

If, for example, congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts, under the construction of the words necessary and proper, here contended for, would be able to pronounce decidedly upon the constitutionality of those means.

Id., p. 289.

Similarly, Tucker observed that the English law of treason applied a rebuttable presumption that a gathering of men was motivated by treason and insurrection, if weapons were present at the gathering. Tucker, however, was skeptical that the simple fact of being armed “ought … of itself, to create any such presumption in America, where the right to bear arms is recognized and secured in the constitution itself.” Vol. 5 Appendix, at 9, note B. He added: “In many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than a European fine gentleman without his sword by his side.” Id. For more on Tucker and the Second Amendment, see David T. Hardy, “The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights,” 103 Northwestern University Law Review Colloquy 1527 (2009); Stephen P. Halbrook, “St. George Tucker’s Second Amendment: Deconstructing the True Palladium of Liberty,” 3 Tennessee Journal of Law & Policy 114 (2007).

From Madison, Coxe, and Tucker to the present, the large majority of Americans have always understood the Second Amendment as guaranteeing a right to own and carry guns for all legitimate purposes.

This view was re-affirmed after the Civil War. Specifically invoking the “the constitutional right to bear arms,” Congress enacted the Second Freedmen’s Bureau Bill to stop the South from interfering with gun ownership and carrying by the former slaves. Similarly, the Fourteenth Amendment was passed by Congress, and ratified by the states, for, among other things, preventing the Southern states from interfering with the Second Amendment rights of the Freedmen to keep and bear arms to defend themselves against the Ku Klux Klan and similar racial terrorists. , Stephen P. Halbrook, Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms (Oakland: Independent Institute, 2010).

The U.S. Supreme Court relied on this original meaning in the 2010 case McDonald v. Chicago, holding that the Fourteenth Amendment prohibits state and local governments from infringing Second Amendment rights.

During part of the 20th century, a theory was created that the Second Amendment was not an individual right, but was instead a “state’s right” or a “collective right.” Although lacking in historical support, these anti-individual theories were for a time popular among some elites. However, in District of Columbia v. Heller (2008), all nine Justices of the Supreme Court agreed that non-individual interpretations of the Second Amendment were supported neither by history nor by the Court’s precedents.

The Heller Court split 5-4 on whether the individual right was only for militia purposes (the four dissenters led by Justice Stevens) or was for all legitimate purposes (the five-Justice majority led by Justice Scalia). The majority result had strong support not only in the original meaning of the Second Amendment, but also in more than two centuries of history and evolving tradition of the Second Amendment, in which the American people had repeatedly affirmed the right to own and carry firearms for personal defense, hunting, and all other legitimate purposes. David B. Kopel, “The Right to Arms in the Living Constitution,” 2010 Cardozo Law Review de Novo 99.

David B. Kopel is Research Director of the Independence Institute, a think tank in Golden, Colorado. He is also adjunct professor of Advanced Constitutional Law at Denver University, Sturm College of Law; and an Associate Policy Analyst at the Cato Institute, in Washington, D.C. He is the author of 12 books and over 80 scholarly articles, many of them on firearms law and policy. He is co-author of the first law school textbook on the subject, Firearms Regulation and the Second Amendment, forthcoming from Aspen Publishers.

 

Guest Essayists: Mr. Kelly Shackelford, President and CEO for Liberty Institute, and Justin Butterfield, Constitutional Attorney, Liberty Institute

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

First Amendment to the U.S. Constitution

Perhaps the most important and the most contentious portion of the United States Constitution, the First Amendment to the U.S. Constitution—the first of the Bill of Rights—was instrumental in ensuring that the new Constitution would be accepted by citizens of the fledgling United States at the end of the eighteenth century. The Constitution set up a government of limited, enumerated powers. “Enumerated powers” meant that the federal government, as originally envisioned, could take no action unless the Constitution explicitly granted the government the power to take that action. In theory, then, the federal government could not restrict freedom of speech because the Constitution did not give Congress permission to restrict freedom of speech. Many American citizens, however, having just fought a war resulting from Britain’s disregard for their rights, were leery of entrusting their newly-won freedom to a government with no explicit protections for individual rights. They did not believe that the “lack of permission” for Congress to act was strong enough protection. To address these concerns, twelve articles, known as the Bill of Rights, were submitted to the states for ratification as amendments to the Constitution. Of these twelve articles, the last ten were ratified in the eighteenth century (the second article of the Bill of Rights was ratified in 1992 as the 27th Amendment to the U.S. Constitution). Unlike the main text of the Constitution, the articles of the Bill of Rights are explicit prohibitions on the government, designed to prevent the federal government from being able to trample on the rights of states and citizens.

The First Amendment famously begins, “Congress shall make no law….” The First Amendment originally limited only Congress and, thus, the federal government. State and local governments were not limited by this (or any other) amendment to the Constitution. The First Amendment was considered to only apply to the federal government until 1925 when the Supreme Court, in Gitlow v. New York, held that the Fourteenth Amendment, which applies to the states, “incorporated” the First Amendment.

Following the statement that the First Amendment applies to Congress are five clauses, each protecting one aspect of the flow of ideas. These five clauses are the Establishment Clause (“…respecting an establishment of religion”), the Free Exercise Clause (“or prohibiting the free exercise thereof”), the Free Speech Clause (“or abridging the freedom of speech”), the Free Press Clause (“or of the press”), and the Assembly and Petition Clause (“or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”).

The first two clauses of the First Amendment protect religious liberty. The Establishment Clause, a reaction against the abuses of the Church of England, was originally intended to prohibit the government from establishing an official national religion or supporting one religious denomination over another. This clause has since been re-interpreted to say that government may not favor religion in general, thus leading to increased attempts to secularize society, including banning any possibly perceived “endorsement” of religion by the government. The Free Exercise Clause is the counterpoint to the Establishment Clause. While the Establishment Clause prevents the government from establishing a religion, the Free Exercise Clause prohibits the government from interfering with individuals’ religious expression.

The Free Speech Clause of the First Amendment protects the expression of ideas. Not all speech is equally protected, however. Political speech is afforded the greatest protection under the First Amendment. Commercial speech—speech done to make a profit—is given less protection. The guaranty of freedom of speech does not extend to certain types of speech, such as obscenity or speech that incites immediate violence. The government is also allowed to place some reasonable limits on when, where, and how speech can take place, but these limits cannot be used to favor one viewpoint over another. For example, a government can prohibit the use of megaphones at night near residential areas, or a government can prohibit a demonstration from walking through a secured military base. If, however, the government allows one group to use a megaphone at night near a residential area, then the government cannot prohibit another group from doing so based on the viewpoint that the second group espouses.

The Free Press Clause is closely related to the Free Speech Clause, but applies to printed communications. This clause has also been used to strike down taxes that specifically target newspapers and laws that require “fairness” in reporting.

Finally, the Assembly and Petition Clause protects the right of people to assemble together and to petition the government. This clause is important in a republic because petitioning the government is one of the main ways the citizenry exercises its sovereignty. While this clause protects the right of the people to petition the government, it does not require that government officials actually listen to or respond to any petition attempt.

Ultimately, a true republican form of government cannot exist apart from the free flow of ideas. Additionally, this amendment ensures that the government cannot impose a state orthodoxy, violating the conscience of those who hold unpopular views or forcing them into intellectual submission. This amendment also ensures that open debate is not thwarted, for as John Milton said, “Though all the winds of doctrine were let loose to play on the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter.”

Kelly Shackelford, Esq., is President/CEO for Liberty Institute, a post he has held since 1997. A constitutional scholar, Mr. Shackelford has argued before the United States Supreme Court, testified before the U.S. House and Senate on Constitutional issues, and is on the Board of Trustees of the United States Supreme Court Historical Society.

Justin Butterfield, Esq. is a Constitutional attorney on staff with Liberty Institute. Mr. Butterfield graduated from Harvard Law School in 2007.  He also holds a Bachelor of Science degree in Electrical Engineering from the University of Texas at El Paso where he graduated Summa Cum Laude.

Guest Essayist: Dan Morenoff, Attorney

 

Article VII

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

We often conflate the history of our country and our constitution, as if the United States of America burst forth, full-grown, from the head of Zeus at ratification in 1789.  To understand what’s important about Article VII of the Constitution, though, you need to think about the government that existed before and authorized the convening of the Constitutional Convention.  Article VII is how the Founders changed the rules in the middle of the game to overstep their authority and remake the nation in ways the Articles of Confederation were designed to prevent.

The United States of America had existed as an independent nation for 13 years before ratification; even before that, the Continental Congress had convened for an additional 3 years – had it not, there would have been no organ of the United States capable of declaring our independence.  We had 14 Presidents before George Washington, 7 of whom were President under the nation’s first written Constitution, the Articles of Confederation.  And, throughout those years, the body that met, with the power to act for America, was the united States in Congress assembled.

It was this Congress that called what became the Constitutional Convention in Philadelphia.  It did so through a resolution calling for states to send delegates “for the sole purpose of revising the articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union.”  This was consistent with the Articles themselves, which provided a mechanism for their own amendment.  Article XIII provided that “the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united States, and be afterwards confirmed by the legislatures of every State.”

But not all the states complied with Congress’s request that they send delegates to the Grand Convention to negotiate proposed amendments to the Articles of Confederation.  Rhode Island, happy with a system in which it often exercised effective veto-authority despite its miniscule size, flatly refused.  New York sent three (3) delegates, the incomparable Alexander Hamilton (a long-time supporter of amending the Articles to create a viable national government) and two staunch defenders of state autonomy included by George Clinton, New York’s soon-to-be-Anti-federalist Governor, for the all-but-stated purpose of voting against anything Hamilton supported.

So when the Founders met in Philadelphia, they faced a seemingly insoluble puzzle.  They met as delegates of states bound by a “perpetual” confederation amendable only by unanimous action.  They met with the task of proposing amendments sufficient to “render the federal Constitution adequate” to preserve that “perpetual” union.  And one of the states whose unanimous support they needed to amend the Articles sufficiently to preserve the Union had already announced through its refusal to participate that it would support absolutely nothing they suggested.

Article VII was how the Founders cut this Gordian Knot.

They would not abide by the Articles’ rules in proposing a replacement for the Articles.  Knowing that they could not meet the Articles’ requirements, they made up their own.  Rather than allow little Rhode Island’s intransigence to doom the convention (and the Union), they replaced the Articles’ unanimous-consent requirement with Article VII’s rule that the new Constitution would take effect for the ratifying states whenever nine (9) states agreed.

And their rule change was decisive.  As implicitly threatened, Rhode Island voted down the Constitution’s ratification in March 1788.*  Without Article VII, that would have been the end of the Constitution.  Because of Article VII, the ratification process continued, though, and the Constitution won its ninth (9th) and decisive state ratification from New Hampshire on June 21, 1788.  Virginia and New York followed by the end of July.  An election then followed, allowing Washington’s inauguration (along with a new Congress under the Constitution) on April 30, 1789, despite the fact that neither North Carolina nor Rhode Island had yet consented to the new regime.

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*          Rhode Island’s version of this history asserts that the state rejected the Constitution because it lacked a Bill of Rights.  http://www.visitrhodeisland.com/make-plans/facts-and-history/.  This is self-justification masquerading as history and ignores the state’s refusal to send delegates to the Convention at a time when no national government was contemplated and no need for a Bill of Rights even imaginable.  Even the U.S. Archives admits that Rhode Island only narrowly ratified after the ratification of the Bill of Rights when “[f]aced with threatened treatment as a foreign government.”  http://www.archives.gov/education/lessons/constitution-day/ratification.html.

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Dan Morenoff is a graduate of Columbia College of Columbia University and of the University of Chicago Law School, who proudly worked on the Legislative Staff of Senator Phil Gramm.  Dan is currently a lawyer in Dallas.

 

Guest Essayist: Nathaniel Stewart, Attorney

Article VI

1: All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

2: 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.

3: 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; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

 

Article VI concerns the debts of the United States, the supremacy of the Constitution and federal law, and the sworn obligation of office holders to uphold the Constitution.

America’s War for Independence was an expensive war – and most of it had been financed.  Tens of millions of dollars had been borrowed from foreign governments and wealthy financiers – some of them even English – who were understandably concerned that their debtors might try to use the country’s new-found independence to avoid repaying their loans.  Indeed, the 1783 Treaty of Paris, which brokered the peace between Britain and the United States, expressly provided that lawfully-contracted debts were to be paid to creditors on either side.

This concern resurfaced as the fledgling country traded in the relatively weak Articles of Confederation for a more authoritative Constitution.  Article VI, clause one, of the new document reassured unpaid creditors that “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” The ratification of the new Constitution then could not be used to shirk paying those who were rightfully owed under the old system.  It was well understood at the time that good credit must be established and maintained if the country would have any hope of survival or longevity.

The second clause, commonly known as the “Supremacy Clause,” makes clear that the Constitution is the binding legal authority on which the country was founded:  “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.” This may seem axiomatic to us today, but the issue was far from settled and “the source of much virulent invective and petulant declamation against the proposed Constitution,” (Federalist No. 33) for it was widely feared that the formation of the federal government would intrude upon the rights and liberties enjoyed by the states and the people.

Richard Henry Lee, a prominent anti-federalist, expressed this fear in the alliterative “Federal Farmer IV” when he warned, “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 wherever this constitution, or any part of it, shall be incompatible with the ancient 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 wherever they shall be incompatible with those customs, rights, laws or constitutions heretofore established, they will also entirely abolish them and do them away.”

Both Alexander Hamilton and James Madison took up the debate and defended the clause.  Hamilton first explained, “If individuals enter into a state of society the laws of that society must be the supreme regulator of their conduct.  If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted [sic] to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed.  It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for Political Power And Supremacy”  (Federalist No. 33).  But Hamilton, perhaps attempting to assuage the fears of men like Richard Henry Lee, insisted that the “acts of the larger society which are not pursuant to its constitutional powers” must then be held “invasions of the residuary authorities of the smaller societies” and will not become the supreme law of the land.  “These,” Hamilton argued, “will be merely acts of usurpation, and will deserve to be treated as such.”  Thus, although a supreme law was required for any proper government to function, the federal government would be limited in its scope to those laws pursuant to the Constitution.

James Madison’s Federalist No. 44 echoed Hamilton’s argument and contended that any Constitution without a Supremacy Clause “would have been evidently and radically defective.”  Madison warned in Federalist No. 44 that, were the state constitutions to exert supremacy over the federal Constitution, “the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.”

It didn’t take long for the question of legal supremacy to find its way to the Supreme Court.  Coincidentally, both the Supremacy Clause and the issue of pre-Treaty debt were taken up in the same case in 1796.  In 1779, during the War for Independence, Virginia had passed a law whereby all property within the state belonging to any British subject or which did belong to any British subject at the time of forfeiture was deemed to be the property of Virginia.  Not only did the statute confiscate British-owned property, it arguably nullified private debts owed by Virginians to British subjects.  In Ware v. Hylton, a British creditor sued an American debtor to recoup the money owed under a pre-war bond.  Virginia’s statute seemed to prevent the creditor from collecting his debt, and the Court was asked to decide: did Virginia’s law or the Treaty of Paris control the collection of the debt?

Making his only appearance as a lawyer before the Supreme Court, John Marshall argued brilliantly on behalf of the American debtor.  Justice Iredell, in the controlling opinion of the Court, ruled against the future Chief Justice:  “Under this constitution, therefore, so far as a treaty constitutionally is binding, upon principles of moral obligation, it is also, by the vigor of its own authority, to be executed in fact. It would not otherwise be the supreme law, in the new sense provided for, and it was so before, in a moral sense.”  The Treaty of Paris thus superseded Virginia’s contrary law, and the Court declined to give effect to the state statute.

Later, Chief Justice Marshall would pen the landmark decision in McCulloch v. Maryland (1819), ruling that Maryland’s tax on the Second Bank of the United States ran afoul of the Constitution.  Nullifying the state’s tax on the federal government, Marshall observed:  “If any one proposition could command the universal assent of mankind, we might expect it would be this— that the government of the Union, though limited in its power, is supreme within its sphere of action.”

A barrage of new federal laws from Capitol Hill and a long line of Supremacy Clause cases marched across the legal landscape in the twentieth century, leaving a blotted trail of nullified state statutes.  Today, “A state statute is void to the extent that it actually conflicts with a valid Federal statute,” (Edgar v. Mite Corporation (1982)), and such a conflict exists wherever compliance with both federal and state law is impossible; or where the state law stands as an obstacle to accomplishing the full purposes and objectives of Congress.

Thus, for example, the Supreme Court held in Raich v. Gonzales (2005) that California’s law permitting doctor-prescribed medical marijuana would frustrate Congress’s efforts to regulate the interstate marijuana market under the federal Controlled Substances Act.  And, as Justice Stevens’ majority opinion casually reminds us, “The Supremacy Clause unambiguously proves that if there is any conflict between federal and state law, federal law shall prevail,” because, as the Court had previously opined, “‘no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress.’” (quoting Wickard v. Filburn (1942)).  We might now wonder whether – in the Court’s view – there remain any regulatory “acts of the larger society which are not “pursuant to its constitutional powers” or which might still invade “the residuary authorities of the smaller societies.”

The third clause of Article VI establishes two important and related principles.  First, its “Oath Clause” requires that “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 . . . .” Once again, the Constitution is supreme, and a conscious effort was made for it to be supported and upheld not only by federal officers and judges, but by state officials as well.  As Hamilton explained in Federalist No. 27, the “Oath Clause” would help ensure that “the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and it will be rendered auxiliary to the enforcement of its laws.”

Second, the “No Religious Test” clause guarantees that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” In the founding era, much of Europe and many of the new American states used religious tests to protect their preferred churches and religions.  In England, the Test Act of 1672 required all public officers to swear a conspicuously anti-Catholic oath declaring disbelief in “any transubstantiation in the sacrament of the Lord’s Supper.”  In 1789, Delaware, Maryland, Massachusetts, North Carolina, and Pennsylvania all had constitutions requiring that their public officials to swear belief in tenets of Christianity.  The “No Religious Test” clause prevented such requirements for holding federal office, but left any such qualifications for state officers untouched.

Perhaps surprising to us today, this clause received a fair amount of debate and resistance from anti-federalists during ratification.  In Massachusetts, for example, one “principal objection” to the Constitution was its lack of a religious test – “rulers ought to believe in God or Christ,” it was argued.  Federalist Oliver Ellsworth defended the constitutional ban on religious tests, believing them to be “utterly ineffectual,” and arguing that “If we mean to have those appointed to public offices, who are sincere friends to religion, we, the people who appoint them, must take care to choose such characters; and not rely upon such cob-web barriers as test-laws are.”  Ellsworth’s view won out, of course – although it remains a rather open question whether we, the people who appoint our public officers, have taken much care to choose those predicted “sincere friends to religion.”

Nathaniel Stewart is an attorney in Washington, D.C.

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Article V, which provides the methods for formal amendment is, arguably, the most important provision in the Constitution outside the creation of the structure of government.  That article embodies a compromise over a very contentious issue that was grounded in conflicting doctrines of republicanism and higher law theory swirling during the Revolutionary War period.

On the one hand, 17th and 18th century republican theory called for decisions by majority vote, albeit under a restricted franchise.  This was a proposition that manifested itself in the post-Glorious Revolution English constitutional system in which a majority of the Parliament (effectively, the House of Commons) not only enacted “ordinary” legislation but controlled constitutional change, as well. Under the English system, there was no categorical distinction between ordinary laws and those of a foundational, i.e., constitutional, nature.  For example, the Charter of Rights did not become politically binding until passed in 1689 as a parliamentary bill. This was a manifestation of a “constitution” that, being unwritten, was considered solely a fundamental political ordering, rather than also a fundamental law.  Hence, there was no formal constitutional amendment process outside an appeal to Parliament to pass or repeal laws that were “constitutional” in the operative sense.

This English Whig republicanism had many adherents in the United States among leaders of the Revolution. For them, the problem was not the theory but the practitioners.  Not surprising, then, some early state constitutions, too, placed the amending power with the legislatures.  Even if a state constitution contained a bill of rights that was immune from legislative tinkering, any violation of that command was to be resolved through political action.  Moreover, anything outside that bill of rights was left to legislative change.

Yet, by the 1780s, an entirely different conception became dominant. To be sure, reaction against the entrenched constitutional order arose from the experience of Americans with the militant republicanism of the day embodied in legislative majorities that, in too many states, contributed to political and economic turmoil exacerbated by class warfare rumblings and the trampling of rights in property. Experience may have sufficed to cause disenchantment with the existing constitutional structure, but it was not enough to explain the emergence of the alternative.

Enter the “higher law” conception of constitutions. Americans had lived in colonies governed, directly or indirectly, by royal charters. By their thinking, Americans were in a contractual, and therefore “legal,” relationship with their proprietors and the Crown through these charters and patents, and Parliament simply had no control over them. Local laws were valid, as long as they conformed to the charter.

This emergent “higher law” constitutionalism also had religious and political roots. Focusing on the latter, it was a component of social contract theory. The republican version of the legitimacy of governmental action under the social contract focused on the political mechanism to be used after the commonwealth was formed, namely, legislative majorities. The higher law doctrine focused on the relationship of the majority’s act to the qualitatively superior action of creating the commonwealth. In a strict version of that view, unanimous consent was required to form the social contract.  In the American experience, the Mayflower Compact provided one such example. At the same time, looking at disparate social contract theorists, such as Thomas Hobbes and John Locke, one finds much ambiguity and question-begging assumptions about how exactly the social contract’s obligations arise.

The colonial experience with royal charters fairly early suggested that such documents were first, law; second, fundamental; and third, not amendable as ordinary legislation. They were law because written and, being in the nature of contracts, binding on all signatories (and, perhaps, their successors). They were fundamental because they dealt with matters that went to the very organization of the political commonwealth. They were not amendable as ordinary laws because each free person had to consent to the changing of the deal that created the basis of political obligation and made the acts of government different from those of a brigand. If unanimity was impractical, at least a supermajority ought to be required. Thus, the charter for Pennsylvania as early as 1701 called for amendments to be adopted only upon 6/7 vote of the assembly.

A pure form of this approach was found in the Articles of Confederation. As the Articles can be considered the formal basis for the formation of a political commonwealth, the United States of America, and in light of the fact that the document repeatedly refers to that commonwealth as a “perpetual union,” it is a social contract.  As such, it could only be amended by the consent of all signatories to the compact, though, of course, a state might provide that a majority within its legislature sufficed to bind the state.

That unanimity requirement was quickly perceived as a parlyzing defect of the Articles.  When the Framers of the Constitution considered the matter, they believed that they had to find a way that avoided the potential for constitutional turbulence from radical republican majoritarianism as well as for constitutional sclerosis from rigid social contract-based unanimity. They urged that the supermajority requirements of Article V appropriately split the difference. This is not a matter readily settled.  The procedure has only been invoked successfully 18 times (the original ten amendments having been adopted at one time). What is clear, though, is that the relative difficulty of the procedure has allowed the unelected judiciary to take on the role of de facto constitutional amendment to a much greater extent than the Framers likely anticipated and than what is consistent with classic republican ideals.

Judging by early state experimentation, constitutional change was to occur, if anything, more directly through the people than Article V allows. Constitutions were typically the job of special conventions whose work would be ratified by popular vote.  Actions by such special bodies and by the people themselves were more immediate realizations of popular sovereignty than actions by legislatures, even by legislative supermajorities. George Washington characterized them as “explicit and authentic acts of the whole people.” It was impractical, however, at the national level, to have all people gather at town halls. Nor was it deemed practical — or wise — to have a national vote on amendments.

In Article V, the mechanism of popular participation is the convention. That mechanism is available for the proposal of amendments emanating from the states and the adoption of the amendments by the states. It is interesting, and perhaps disappointing from the republican perspective, that the first has never been used and the second has been used only to repeal another constitutional amendment, regarding alcohol prohibition. Instead, Congress typically proposes, and state legislatures dispose.

There is, however, an institutional reason why no constitutional convention has been called to draft amendments. Plainly put, Congress and the political elites fear that a convention could ignore any specific charge from Congress and draft a whole new constitution. That is, after all, what happened in Philadelphia in 1787. If a matter came close to receiving the requisite number of petitions from states, it is likely that the Congress would itself adopt an amendment and submit it to the states. That is precisely how Congress got around to proposing the 17th Amendment for the direct election of Senators after enough states submitted petitions to put them one short of the required 2/3. Currently, the proposed balanced budget amendment is just two states short.

More troubling to some is whether the people could go outside Article V to form a convention.  That was an issue raised, but not resolved, before the Supreme Court in 1849 in a case involving an insurrection in Rhode Island under the guise of adoption of a “popular constitution.”  Traditionalists point to Article V as providing the means the people have chosen to limit themselves, lest constitutional instability be the order of the day.  In response, republicans assert that American bedrock principles of popular sovereignty (found, among other places in the Federalist Papers) do not admit of so limiting the people’s power. The people ultimately control their constitution, not vice versa. James Wilson, no wide-eyed radical, speaking in the Pennsylvania ratifying convention, defended the Framers’ alleged departure from their charge by the Confederation Congress by declaring what was a self-evident truth to most Americans at the time, that “the people may change the constitutions whenever and however they please.”

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

Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

 

Article IV, 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.

Here the Framers speak the heart of their intentions for America.

In the Declaration of Independence, they had objected to George III’s actions because he had violated the laws of nature and of nature’s God.  One might suppose that the Americans’ complaints amounted to no more than an accusation that this king had turned tyrant—that some other, more just, monarch (a Queen Anne, a Henry IV) might have appeased them. Indeed she, or he, might have done—for a time.

But a more careful reading of the Declaration shows that not only the king but also Parliament had angered the colonists.  Americans judged that the whole British regime, and the structure of the British empire, deserved to be overthrown—replaced with a new regime and a new imperial structure. The new regime was republican—republicanism as they, not the Europeans, understood it—and federal—a federalism informed but not simply as defined by the great French political philosopher, Montesquieu.

What danger did this clause address?  The highly respected Massachusetts delegate, Nathaniel Gorham, joined John Randolph and George Mason of Virginia and James Wilson of Pennsylvania in issuing the warning: “an enterprising Citizen might erect the standard of Monarchy in a particular State, might gather together partisans from all quarters, might extend his views from State to State, and threaten to establish a tyranny over the whole and the General Government be compelled to remain an inactive witness of its own destruction.” That is, these Framers anticipated the kind of career undertaken by Napoleon in France a decade before the fact, and they moved decisively to prevent it from happening here.

As usual, James Madison (writing in the forty-third Federalist) provides the clearest overview.  “In a confederacy founded on republican principles and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations.”  Why so?  Because the United States is not only a republic but a federal union: “The more intimate the nature of such a Union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into, should be substantially maintained” (emphasis in original).  What is more, “Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature,” he writes, citing Montesquieu’s research as proof. Not only the federal government but the constituent states of the federal union must be republican.  Only this can stand as what Jefferson called “an empire of liberty.”

“But a right implies a remedy,” Madison continues.  What power within the United States can safely prevent an anti-republican faction from seizing control of a state?  “What better umpires could be desired by two violent factions, flying to arms and tearing a State to pieces, than the representatives of confederate States not heated by the local flame?  To the impartiality of Judges they would unite the affection of friends.” And even more ambitiously: “Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of all mankind.”  This would require that republican regimes achieve a sort of `critical mass’ throughout the world; in 1787, they had achieved such a critical mass only in the United States.  If republicanism failed here, when and where would it revive?  When and where would a general civil peace obtain—the condition for securing unalienable human rights?

Protection against invasion includes not only invasion by foreigners—the United States was bordered by the non-republican empires of Spain and Great Britain, as well as by the non-republican (and still formidable) Amerindian nations to the west—but also by other states of the Union.  Although (as Montesquieu had remarked) commercial-republican regimes had not fought one another in the past, the Framers were taking no chances.

The Constitution guarantees federal intervention in times of anti-republican rebellion and of invasion foreign or domestic.  Intra-state violence that is not anti-republican raised another problem. Massachusetts had suppressed Shays’ Rebellion only a few months before the Convention convened. Daniel Shays and his men had rebelled out of desperate indebtedness; far from being anti-republican, many had served in the war on the Patriot side. Convention delegates Elbridge Gerry and Luther Martin objected that intervention in such cases could be dangerous and unnecessary unless the afflicted state consented to it. At the same time, whatever Jefferson may have thought about a little rebellion now and then, armed rebellion does tend to throw cold water on the rule of law, and republics normally operate according to the rule of law. The delegates therefore agreed to require the federal government to obtain consent from the state government before intervening in such disputes.  On balance, the local authorities will judge best when a republican rebellion requires the heavy hand of federal intervention.

In his Federalist essay, Madison did not hesitate to notice a force that might intervene in any disorder, whether anti-republican or republican, foreign or interstate or domestic.  An “unhappy species of population abound[s] in some of the States, who during the calm of regular government are sunk below the level of men; but who in the tempestuous scenes of civil violence may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves.”  The presence of slaves in the United States raised the harshest questions about both the American regime and the American federal union.  By nature, the slaves were men; by law, they were a self-contradictory mixture of personhood and property.  Civil disorder of any kind might induce them to rise up and claim their natural rights, perhaps at the expense of the natural rights of their masters; slave revolts had occurred in New York during the colonial period, and of course the freeman Toussaint Louverture would lead a (temporarily) successful insurrection in Haiti beginning in 1791.  “We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man,” Madison declared.  Would a slave revolt be an attack on republicanism or a vindication of it?  Madison and the other founders sought some way to avoid such a revolt, which might overturn republicanism in the name of republicanism or perhaps install some other regime as a remedy for evils of slaveholding republicanism.

Put in a somewhat different way, the dilemma was as simple as it was stark.  As Madison wrote in Federalist 43, the republican guarantee clause “supposes a pre-existing government of the form which is to be guaranteed.”  That is, the basis of the federal union—the new empire of liberty replacing the old empire of tyranny—is the republican regime of each constituent state.  Each state entered the union acknowledged as a republic by all of the others. But how `republican’ were those states in which slaves “abounded”?  Madison knew the answer, which he would write down in an unpublished note a few years later: “In proportion as slavery prevails in a State, the Government, however democratic in name, must be aristocratic in fact.  The power lies in the part instead of the whole, in property instead of numbers. All the ancient popular governments were, for this reason, aristocracies.  The majority were slaves…. The Southern States of America, are on the same principle aristocracies.” In his own Virginia, he observed, the population of non-freeholding whites and black slaves amounted to three-quarters of the population (Papers of James Madison, vol. xiii, p. 163).

Such regimes were republics in Montesquieu’s sense—“aristocratic” rather than “democratic” republics.  For Montesquieu, “republic” meant simply that the regime did not amount to the `private’ possession of one person—a despotism.  This definition derived from the Latin root of the word: res publica or “public thing.” But to Madison and rest of the founders “republic” meant the “democratic” republic, only; in the words of Federalist 39,  “it is essential” to republican government “that it be derived from the great body of society, not from an inconsiderable proportion or favored class of it.” And “it is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people—i. e., the representative principle. Representatives represent the people at large, not some “favored class.” In his 1787 critique of the Articles of Confederation, “Vices of the Political System of the United States,” Madison went so far as to publish the sentence: “Where slavery exists the republican theory [namely, that right and power are co-extensive because the majority rules] becomes still more fallacious” than it does under conditions whereby there is a large number of disenfranchised paupers.

All of this being so, the republican regime and the federal union—the unity of the United States—began its life on a knife edge.  The Framers hoped that their new Constitution would provide a framework for the peaceful resolution of the problem of popular self-government under conditions in some ways favorable—remoteness from Europe, commercial interdependence of the states, and all the other features described in the first Federalist—and in some ways ominous—the existence of anti-republican regimes on the borders and of anti-republican “domestic institutions” within the states themselves.   They inserted the republican guarantee clause as one way of strengthening that framework.  In a way, it did—but its enforcement came at horrible cost, decades later.

 

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

Guest Essayist: Dan Morenoff, Attorney

Article IV, Section 3, Clause 1-2

1: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
2: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Marge Simpson: “There are only 49 stars on that flag.”
Abe Simpson: “I’ll be deep in the cold, cold ground before I recognize Missouri.”

Abe Simpson got it partly right. Article IV, Section 3 leaves one state Constitutionally suspect; it’s just not Missouri. It also highlights that, under irrevocable actions taken by Congress, there could be 54 states at any time one state chooses.

Congress first admitted states to the Union while Washington was still President. In 1791, it admitted Vermont (a territory previously claimed by both New York and New Hampshire, which had governed itself for 14 years). Within months, it admitted Kentucky (formerly, the disgruntled, Western counties of Virginia).

The pairing indicated the great dividing line in American political life for the next 70 years. Congress admitted the states together to preserve the balance in the Senate between states allowing human slavery and those abhorring it. Also noteworthy, Virginia consented to the independence of Kentucky only after negotiating an interstate compact that Congress contemporaneously approved.*

By 1820, the tradition of admitting states in free and slave pairs (Indiana and Mississippi, Illinois and Alabama) was so engrained that it required the Missouri Compromise. Congress contemporaneously admitted Missouri (formerly a territory) as a slave state and the northern district of Massachusetts as a newly separate, free State of Maine, while drawing a line through the West beyond which slavery would not be allowed in the remaining Federal territories. Unlike the Virginia of 1790, Massachusetts, happy to preserve the balance of power for free states, demanded no concessions from Maine on consenting to the separation.

The events that followed, including the eventual repeal of the Missouri Compromise’s Western-land provisions in 1854, directly precipitated the Civil War.

Notice that, already, Congress had twice exercised the power to carve a state out of another state, with the consent of the severed state’s legislature. During the Civil War, it did again, this time in a Constitutionally suspect manner. After Virginia seceded from the Union, its loyalist, mountain counties seized the chance to free themselves from the richer, more heavily populated lowlands. Deeming the rebellious state legislature in Richmond illegitimate, these counties’ representatives gathered in Wheeling, Virginia (in their midst) and declared themselves the legitimate government of all of Virginia. It was this “loyal” government of Virginia which consented to the carving of the same counties represented within it into the new state of West Virginia.

When the Civil War concluded and Virginia returned to the Union, Virginia’s government predictably challenged the legitimacy of the Wheeling convention’s actions during the war. In 1865, the Virginia General Assembly repealed the Wheeling convention’s act, nominally in Virginia’s name, of consenting to the split. Litigation followed, in which the United States Supreme Court implicitly recognized the Wheeling convention as having spoken both for the seceding counties and for the State of Virginia as a whole, despite the fact that this put the same people on both sides of the table in a negotiation.** Nonetheless, since 1871, West Virginia’s questionable legitimacy has been set aside, apparently in the interest of finality.

Finally, it is worth noting that while no new state has been admitted to the Union since 1959, Congress has bindingly consented to further admissions.

Alone among America’s states, Texas was an independent republic before statehood, which joined the Union not through the usual process of Congressional admission, but through the contemporaneous action of two, equal sovereigns. On February 26, 1845, the U.S. Congress passed a joint resolution offering Texas statehood. Texas then convened an Annexation Convention that approved annexation and submitted an Annexation Ordinance to popular referendum in October 1845. After the people of Texas authorized ascension, both the U.S. House and Senate approved the Annexation Ordinance and President Polk signed it into law on December 29, 1845.

Both the initial U.S. Congressional joint resolution and the Annexation Ordinance included the following provision:

New States of convenient size not exceeding four in number, in addition to said State of Texas and having sufficient population, may, hereafter by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the Federal Constitution.

An affirmative part of the deal between sovereigns, enshrined in the law of the United States, was that Texas, at its discretion, may self-divide into up to five (5) states at any time. While Texas has, to date, never exercised this option, it has the legal right, should it so choose, to sub-divide and claim an additional 8 seats in the United States Senate at its pleasure.
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* The Compact bore on the preservation of land-titles held on paper by Virginians before Kentucky’s independence. The conflicts that Compact’s terms set in motion between Virginians that had never seen the lands in question but held papers properly filed in Richmond and the frontier woodsmen who settled Kentucky and developed its lands would only be resolved 140 years later through the Kentucky Supreme Court’s resort to legal fiction. Green v. Biddle, 21 U.S. 1 (1823).

** Virginia v. West Virginia, 78 U.S. 39 (1871).

Dan Morenoff is a graduate of Columbia College of Columbia University and of the University of Chicago Law School, who proudly worked on the Legislative Staff of Senator Phil Gramm. Dan is currently a lawyer in Dallas, Texas.

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article IV, Section 2, Clause 1-3

1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Of these clauses in Article IV, Section 2, the last, the Fugitive Slave Clause, similar to one adopted by the Confederation Congress in the Northwest Ordinance contemporaneous with the drafting of the Constitution, is now a dead letter. Another, the Extradition Clause, imposes a theoretical duty (“shall…be delivered”) on the state governors. But the Supreme Court ruled in 1861 that judicial compulsion, by writ of mandamus, was unavailable. As a result, governors have considered themselves at liberty to refuse requests for extradition when, in their opinions, justice so demands. Rather, the clause is enforced (more or less) politically through interstate compacts, uniform state laws, and (indirectly) federal fugitive-from-justice legislation.

The first clause, the (“Interstate”) Privileges and Immunities Clause, has a long pedigree, yet remains murky in meaning and ambiguous in scope. It is derived from Article IV of the Articles of Confederation (as are the Constitution’s Extradition and Full Faith and Credit Clauses). The existence of these clauses in both charters is evidence of the continuity reflected in the Constitution’s Preamble “to form a more perfect [not a new] Union.” These clauses also are one more manifestation of the bedrock federalism principle of union among states (rather than simply creation of a national government over the states) that runs through both charters.

The Constitution’s version of the P&I Clause is a redaction of the more compendious version in the Articles. Unfortunately, concision did not bestow clarity. Four different meanings have been advanced. The first is that the clause is actually a restriction on Congress not to pass laws that discriminate among different states and the citizens thereof. This interpretation received support from Justice Catron in his concurring opinion in the Dred Scott Case. It is constitutionally obsolete today.

Another interpretation is that the clause guarantees the citizens of each state various rights that are enjoyed by citizens in any other state. That view was specifically rejected by the Supreme Court a century ago. It would have given the Supreme Court the kind of power of review over state laws that it came to acquire more gradually through judicial expansion of the 14th Amendment by the “incorporation” of various Bill of Rights guarantees into the due process clause and the creation of new categories of unconstitutional discrimination under the equal protection clause.

A third interpretation is that the clause guarantees the right of a citizen of a state to exercise the rights that he has in his own state even when visiting another state, that is, to carry his rights of state citizenship throughout the Union. That view, as well, has been rejected by the Supreme Court, albeit implicitly, well over a hundred years.

The fourth, and constitutionally accepted, understanding is that the clause prohibits certain forms of discrimination by a state against citizens from other states who are sojourning within its borders. This creates a kind of equal protection principle. The Constitution had no clause that prohibited discrimination against (some) individuals overtly as the 14th Amendment’s Equal Protection Clause does today. But there were some clauses that operated through a limited and implied non-discrimination principle. The P&I Clause is one.

The P&I clause does not apply to corporations or other merely “legal” persons. Nor does it apply to aliens. Neither of those limits is significant today, in light of the Court’s expansive reading of the 14th Amendment. The P&I Clause also provides no minimum protections of rights. To the extent the state limits the exercise of rights of its own citizens, it may do so for outsiders coming into the state, at least under this provision. Outsiders have the right not to be treated unfavorably due to their status as visitors, but have no right to be treated more favorably.

Not all rights are protected. The exact definition has always been elusive. The seminal opinion in this area is a circuit court opinion by Justice Bushrod Washington from 1823, Corfield v. Coryell. He wrote: “We have no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.”

Such flourishes, while rhetorically satisfying, do not provide concrete guidance. Justice Washington carries on, but does little to penetrate the verbal fog; “What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.”

He finally delivers himself of some examples of protected rights, privileges, and immunities. “The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise;…to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state….These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.’”

Such rights, deemed fundamental to the concept of a single nation, do not include the right to hunt game, to fish, or to engage in certain “quasi-public” businesses, such as insurance. Nor does it include a right to vote or to attend college at in-state rates, though, oddly, it includes the right not only to receive welfare payments without residency requirements, but to receive the same level of payment as those who have lived in the state for many years. To curtail even marginally the opportunities of welfare recipients to spend their “down time” in a state with higher benefits than their current domicile by having to meet the new state’s residency requirement is an intolerable burden on the right to travel. To be sure, the Supreme Court’s decisions on the matter rest on uncertain constitutional foundations, that eminent tribunal having referred to Article IV, to the Commerce Clause, to the 14th Amendment’s Equal Protection and (most recently) Privileges or Immunities Clauses as havens for a right to travel. Since states would like these welfare recipients to keep traveling, the Court has also re-characterized the right as “moving to another state.”

The P&I Clause of Article IV apparently was intended as a significant part of the constitutional edifice. With the Supreme Court’s inflation of the 14th Amendment, and Congress’ frequent resort to legislation under the commerce clause, it has become virtually redundant. Still, every decade or so, a case comes along to remind us that there is “still some life left in the carcass.”

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

Guest Essayist: Cynthia Dunbar, attorney, author, speaker and Assistant Professor of Law at Liberty University

Article IV, Section 1

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.  And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

The desires to both strengthen and unify their new country beyond what the Articles of the Confederation had accomplished and at the same time preserve the sovereignty of the individual states motivated the Framers in their drafting the Constitution.  This principle of federalism, or the governmental structure of coexistent sovereigns, necessitated the creation of the Full Faith and Credit Clause. Since each state would be an independent sovereign with its own laws and polices there would obviously need to be a method of guaranteeing that judgments rendered in one state would be recognized by the courts of all other states within the union. The Supreme Court of the United States (SCOTUS) in Milwaukee County v. M. E. White Co., 296 U.S. 268, 56 S. Ct. 229, 80 L. Ed. 220 (1935) reaffirmed this intent of the Framers that the individual states be “integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.”

Consequently, we see that the real essence of the Full Faith and Credit Clause is to ensure that valid judgments rendered in one jurisdiction can be uniformly enforced within alternate jurisdictions.  This prevents parties from having to litigate the same claim numerous times prior to execution of the judgment being recognized.  For example, if a court of competent jurisdiction in Alabama enters a judgment against John Doe for $25,000.00 to Jane Doe, and John Doe later moves to Arizona, Jane Doe would be able to execute the judgment against John Doe in Arizona without having to relitigate the entire case in Arizona.

The SCOTUS in Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 438, 64 S. Ct. 208, 213, 88 L. Ed. 149 (1943) said “we assume . . . that the command of the Constitution and the statute is not all-embracing, and that there may be exceptional cases in which the judgment of one state may not override the laws and policy of another.”  The court has referred repeatedly to “well-established” exceptions; however, they have never delineated a list of what constitutes a well-established exception.  For a judgment to be enforceable in a sister jurisdiction, it would have to have been a valid judgment in the original jurisdiction, one which would have withstood all valid legal defenses.  In other words, one could not enforce a judgment in an alternate jurisdiction on the basis of “Full Faith and Credit” where the judgment would have been unenforceable in the original jurisdiction.

During the constitutional convention the basic structure of the Full Faith and Credit Clause was borrowed from the Articles of Confederation and then expanded.  However, the ultimate source for this principle came from the uncodified common law, as did most constitutional and statutory provisions at the inception of our nation.  The reality of the importance and impact of the common law was reaffirmed by Justice Cardozo‘s statement that most constitutional provisions were “built upon a substratum of common law, modifying, in details only, the common law foundation.” CARDOZO, THE GROWTH OF THE LAW (1924) 136

According to Justice Story, the specific details of the underlying principles in the common law had, unfortunately, not been definitively ascertained.  He lamented this overall ignorance of this area of the law in his Conflict of Laws treatise of 1834.   “There exists no treatise upon it in the English language; and not the slightest effort has been made, except by Mr. Chancellor Kent, to arrange in any general order even the more familiar maxims of the common law in regard to it.”

What is pivotally important from a historical aspect is that the Full Faith and Credit Clause in no way created a uniform framework of laws.  It was merely a vehicle for enforcement of judgments, not a means of usurping state legislative authority and policy making decisions.  An obvious example of this is seen by our acceptance of differing laws within differing jurisdictions. Nobody would ever contend that the Full Faith and Credit Clause allows a citizen of Texas to avoid criminal prosecution in Missouri for driving 75 mph on an interstate that has a speed limit of 60 mph simply because the same interstate has a 75 mph speed limit in Texas.  The distinctions between state laws are numerous and many as is their right and prerogative.

Consequently, the more recent push to utilize the Full Faith and Credit Clause to force policy issues on dissenting states is constitutionally and historically unfounded.  In 1993 The Supreme Court of Hawaii alluded to the fact of an equal protection challenge to a state not recognizing a same-sex marriage.  The fact that states historically recognized marriages that were contracted within another state should not have been legally relevant or determinative for two simple reasons. First, this issue deals purely with a clear conflict of laws, not recognition of a court’s ruling or judgment through analysis of its laws. Second, the states uniformly recognized the marriages of other states because they did not present blatant opposing public policy issues pertaining to how marriage was defined that would serve to override their own laws.

In response to the dicta in the 1993 case, the United States Congress passed the Defense of Marriage Act, better known as DOMA, which not only defined marriage, it also granted to the states the express right to not recognize a same-sex union performed outside of its jurisdiction.  This Act has continuously been under attack and the current administration’s Department of Justice is even refusing to fulfill its obligation to enforce it.  In response, Congress has been forced to acquire special counsel at additional expense to taxpayers in an attempt to see the DOJ’s obligations fulfilled. Had there been a clearer and more historically accurate understanding of the scope and extent of the Full Faith and Credit Clause, this entire issue could have been avoided.  Unquestionably, Full Faith and Credit was never intended to impose legislative policy onto a competing jurisdiction beyond that expressed within an actual court ruling or judgment for execution and enforcement.

Cynthia Noland Dunbar is an attorney, author and public speaker and is frequently seen on Fox & Friends.  A former elected member of the Texas State Board of Education, she currently is an Assistant Professor of Law at Liberty University School of Law and teaches on our Constitutional and common law heritage.

Guest Essayist: Horace Cooper, legal commentator and a senior fellow with The Heartland Institute

Article III, Section 3, Clause 1-2

1:  Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.  No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

2:  The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The issue of role of loyalty to one’s own country isn’t nearly as simple a matter as it might appear. Of course, most people have a natural affinity for the country where they were born or at least spent most of their life in. Moreover, should the government actually have the authority to compel you to love your country? Finally, what does it mean to be disloyal? There are crucial distinctions between the right to exercise dissent, criticism and disagreement and the actual disloyalty to one’s own country.

Merriam-Webster defines treason as “the offense of attempting by overt acts to overthrow the government of the state to which the offender owes allegiance or to kill or personally injure the sovereign or the sovereign’s family”

Throughout history, many rulers have used the issue of loyalty to the country or sovereign as a tool to oppress their critics or even as a pretext for mistreating unpopular individuals in the country. At the same time, treason is considered perhaps the worst possible crime both because the victims aren’t individuals but all of the society that live in a given country.

Depending on the nature of the treasonous activity engaged in, the citizens of the entire nation may suffer financial harm or in extreme circumstances face loss of life or limb. Unlike the laws of many nations which can be changed at will, the U.S. Constitution specifically defines treason and does so in a way that seems obvious in impact.

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

In fact, this is the only crime that is specially outlined in the Constitution. Recognizing the severity of the threat that treason posed to the new nation, one of the first acts of the United States Congress made treason a capital offense:

“If any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States, or elsewhere, and shall be thereof convicted on confession in open Court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and SHALL SUFFER DEATH;

The language tracked the Constitution and gave clear guidance to every American that dissent and political debate were not to be considered in any way an example of disloyalty to the nation. At the same time, the new statute made it clear that the new nation would deal severely with those convicted.

Most readers quickly understand that joining others to levy war against our country would constitute treason, but what of “adhering to their Enemies, giving them Aid and Comfort.” The founders recognized that there were some actions that were so uniquely inimical to loyalty that they could be punished even if they didn’t involve actual war-making against America. Examples of “adhering to their enemies” might include selling the designs for a subterranean entry into the White House or making and providing false identification cards to foreign agents to allow them to enter the Pentagon. “Aid and comfort” refers to counseling, abetting, plotting, assenting, consenting, and encouraging any act against the United States being carried out by an enemy of America.

While treason charges have most often been used in the context of war between nations there is no specific provision limiting treason charges to actions by a person on behalf of an enemy country. In other words, the Constitution does not limit a treason charge to an individual supporting an enemy nation such as Cuba or the former Soviet Union. Support for terrorists such as Al Qaeda, which have no specific nationality, can just as easily result in a charge of treason.

In addition, it’s no coincidence that the standard of proof for a conviction for treason in the Constitution was rigorous. This provision tracked the “English Treason Act of 1695” which precisely required a treason trial to require evidence of at least two witnesses to whatever act of treason was charged as a way to minimize the ability of the sovereign to accuse his political enemies of treason and have him or her executed.

The second provision is straightforward:

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Like most countries, the United States Congress has for nearly 200 years consistently insisted that the maximum punishment that could be levied against those convicted of treason would be execution. While our Congress has that authority, they are not unlimited in this area. Congress is not allowed to pass a statute that works a “corruption of blood” – a law that would interfere with the transfer of property from father to son – unless the property is confiscated prior to the death of the treasonous person.

Treason is insidious and truly dangerous because it involves crimes in which people who should owe a degree of loyalty abuse that trust in a way that endangers all of society. Cicero explains, “A nation can survive its fools, and even the ambitious. But it cannot survive treason from within.”

Horace Cooper is a legal commentator and a senior fellow with The Heartland Institute

Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

Article III, Section 2, Clause 3

3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

There are two current political issues whose resolution hinges on the interpretation of this clause: plea bargaining and the treatment of suspected terrorists.

Plea bargaining is the manner in which criminal cases are resolved without the benefit of trial. Rather than facing the full charge or the maximum penalty, the accused can plead guilty to a lesser charge in exchange for a lighter penalty. These agreements are reached without the benefit of a bench or jury trial. Plea bargains are quite common, and in fact have become more common than trials, due to the heavy workload of the courts. Courts could not function without relying on plea bargains and therefore plea bargains are often encouraged by prosecutors and judges. So while the need for plea bargains is real, the lingering question remains as to whether they are Constitutional according to Article III, Section 1, Clause 3. The act of plea bargaining has not been found to be unconstitutional, but that does not mean we should accept the practice.

No defendant can be coerced into a plea deal and therefore remains able to choose a trial and reject a plea deal. This supports the constitutionality of the plea bargain; but my reservations over the practice still remain. I begin with the assumption that the Founders established a Constitution aimed at establishing justice and that the institutions and practices in the Constitution can lead to justice if followed as the Founders had intended. Therefore, if read literally, the Founders can be said to have believed, as consistent with the excerpt under consideration, that the best pathway to justice is through a jury trial in criminal cases. If this is so, then we are left to wonder whether plea bargains abandon the Founders’ goal of justice or whether plea bargains abandon those institutions and processes the Founders thought would lead us to justice. In accepting plea bargains as a valid way to resolve criminal cases, have we replaced our justice system with a mere legal system?

No one will doubt that the eradication of terrorists is necessary and that playing by the rules severely hamstrings America’s ability to protect itself. For this reason we have found it necessary to not offer jury trials to many of those in custody. But the same questions that were raised above can be raised here: If the Constitution sets up a system that can achieve justice when literally followed then does abandoning that process compromise the search for a just resolution? Or, should we say, that abandoning this part of the Constitution in our fight against terrorism is the only means to achieve justice?

The two most popular responses are that those we have been arrested are enemy combatants and should therefore be dealt with in a military setting or that the rights guaranteed in the Constitution only apply to citizens. The first of these is the most defensible although it is still in question who determines if someone is an enemy combatant, how the term is defined, and if the who and how are done through means consistent with Constitutional principles. The second is more difficult to defend simply because in Article III, Section 2 the Constitution gives jurisdiction to federal courts in cases involving a state, or the citizens thereof, and “foreign states, citizens, or subjects.”

So now it is time to disappoint the reader I am afraid. I have taken this clause of the Constitution as far as I am capable and thus do not have a definitive answer to the questions I have raised. I do lean towards particular answers, but because I cannot be for certain what the Founders would have said on the matters, I must remain humble and not express those inclinations until more searching has been done. But, Article III, Section 3 should provide additional insight.

My intention for this essay was to show how this clause applies to current political events and uncover the fundamental questions that must be answered in order to reach some resolution. So let me repeat the most fundamental questions I see for this clause: If the Constitution sets up a system that can achieve justice when literally followed then does abandoning that system compromise the search for justice? Or, should we say, that abandoning this part of the Constitution in our fight against terrorism or overworked courts is the only means by which we can achieve justice? And, if we answer in the affirmative to the second question, must we say that the Constitution, if strictly followed, cannot lead us to justice in all situations?

Raising and pursuing these fundamental questions in a slow, deliberate manner within the confines of care, reason, and logic—without employing clichés or rhetoric—is the true intention of the Founders. Our Founders were deep and original thinkers who understood the fundamental questions and the importance of asking them. Their search for truth was more important to them than the personal attachment they felt to a particular position. We too should be so brave!

Kyle Scott is a lecturer in the Department of Political Science and Honors College at the University of Houston. His third book, Federalism, is due out March 17th. Dr. Scott has written on the Federalist Papers for Constituting America and proudly serves as a member of its Constitutional Advisory Board. He can be reached at kascott@uh.edu. Or, you can follow his blog at www.redroom.com/member/kylescott

Guest Essayist: Charles E. Rice, Professor Emeritus of Law at the University of Notre Dame

Article III, Section 2, Clause 2

2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Exceptions Clause of Article III, Section 2, provides that “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” This was intended, according to Alexander Hamilton, to give “the national legislature… ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove [the] inconveniences” which might arise from the powers given in the Constitution to the federal judiciary.” The Federalist, no. 80.

Prior to 1868, the Supreme Court had no occasion to rule on an act of Congress making an exception to its appellate jurisdiction. But when William McCardle, a Mississippi editor, was imprisoned by the federal reconstruction authorities, he sought a writ of habeas corpus from the federal circuit court, asking that court to rule that his detention was invalid. When this petition was denied he appealed to the Supreme Court under an 1867 statute permitting such appeals. After the Supreme Court heard arguments on the case, Congress repealed that part of the statute which had given the Court jurisdiction to hear such appeals.

The Court dismissed the appeal: “We are not at liberty to inquire into the motives of the legislature,” said the Court. “We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words… without jurisdiction the court cannot proceed at all in any case. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the case. And this is not less clear upon authority than upon principle.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 513-14 (1868).

The 1868 statute upheld in McCardle barred review only under the 1867 statute. In Ex parte Yerger 75 U.S. (8 Wall.) 85 (1868), the Court held that the 1868 statute left untouched the Supreme Court’s power to issue its own writ of habeas corpus to a lower court as provided in the Judiciary Act of 1789. But neither in McCardle nor in Yerger is there any indication that the Court would not have upheld an act withdrawing from the Court appellate jurisdiction in all habeas corpus cases.

In U.S. v. Klein, 80 U.S. (13 Wall.) 128, 145-46 (1872), the only Supreme Court decision striking down a statute enacted under the Exceptions Clause, the Court spelled out one limitation of that clause. Klein, a former Confederate, sued in the Court of Claims to recover for the seizure and sale of his property by Union forces. He had received a presidential pardon for his Confederate activities. If he had not received a pardon, the law would have prevented his recovery. While the appeal of his case was pending before the Supreme Court, a statute was enacted which provided that, whenever a judgment was founded on such presidential pardons, without other proof of loyalty, the Supreme Court shall have no further jurisdiction of the case. The statute further declared that every pardon granted to a suitor in the Court of Claims which recited that he had been guilty of rebellion or disloyalty, shall, if accepted by him in writing without disclaimer of those recitals, be taken as conclusive evidence of such act of rebellion or disloyalty and his suit shall be dismissed. While declaring the statute unconstitutional, the Supreme Court stated that Congress has power to deny appellate jurisdiction “in a particular class of cases:”

If this act … simply denied the right of appeal in a particular class of cases, there could be no doubt that it must be regarded as an exercise of the power of Congress to make “such exceptions from the appellate jurisdiction” as should seem to it expedient.

The statute in Klein attempted to dictate to the Court how it should decide a class of cases under the guise of limiting its jurisdiction. The Court lost jurisdiction only when the Court of Claims judgment was founded on a particular type of evidence, a pardon. The statute further prescribed that the recitals in the pardon of acts of rebellion would be conclusive proof of those acts. “What is this,” said the Court, “but to prescribe a rule for the decision of a cause in a particular way?” The Klein statute intruded also upon the President’s pardoning power by attempting “to deny to pardons … the effect which this court had adjudged them to have.” In these respects the statute in Klein was different from a statute withdrawing appellate jurisdiction over a class of cases.

Since Klein, the Supreme Court has not defined any further limits to the Exceptions Clause. But there are limits. Congress, for example, could not withdraw from the Supreme Court appellate jurisdiction, “in any case where a Baptist shall be” appellant. This would be unconstitutional, not because of a limitation in the Exceptions Clause, but because of a prohibition in the First Amendment. The religion of the appellant has nothing to do with the authentic nature of the case. The fact that Congress is forbidden by the First Amendment to prohibit appeals by Baptists, Jews, etc., does not mean that there is a restriction on Congress’ power to exclude classes of cases, as determined by the nature of the case, from the appellate jurisdiction of the Supreme Court as well as from the jurisdiction of the lower federal courts.

If a statute removed appellate jurisdiction from the Supreme Court, in, for example, “all cases but patent cases,” such would not be an exception but rather a wholesale obliteration of appellate jurisdiction. On the other hand a surgical removal of appellate jurisdiction in a class of cases, such as prayer in public schools, would be permitted under the Exceptions Clause. Such a withdrawal of jurisdiction would not change the Constitution, as would a constitutional amendment. Unlike a constitutional amendment, a withdrawal of appellate jurisdiction in school prayer cases would not reverse the Supreme Court’s rulings on school prayer. Some state courts might follow those decisions as the last authoritative Supreme Court expression on the subject. Other state courts might disregard the Supreme Court precedents and decide in favor of school prayer once the prospect of reversal by the Supreme Court had been removed.

An argument that fundamental rights should not vary from state to state begs the question of whether there is a fundamental right to uniformity of interpretation by the Supreme Court on every issue involving fundamental rights. The Exceptions Clause, an important element of the system of checks and balances, grants a wide discretion to Congress. There is, in short, a fundamental right to have the system of checks and balances maintained in working order. Without that system, other rights, such as speech, privacy, and free exercise of religion, could be reduced to nullities. This right to a preservation of the system of checks and balances is itself one of the most important constitutional rights.

Charles E. Rice is Professor Emeritus at the University of Notre Dame law School. His areas of specialization are constitutional law and jurisprudence. He currently teaches “Law and Morality” at Notre Dame.

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article III, Section 2, Clause 1

1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;10 –between Citizens of different States, –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Article III, Section 2 defines the universe of federal jurisdiction (“shall extend to”). The kinds of issues included are defined either by the nature of the cause or the character of the parties. An example of the first is “federal question” jurisdiction, i.e., cases “arising under this Constitution, the laws of the United States and treaties ….” The second might be a dispute “between two or more States.”

This is not necessarily federal court jurisdiction. As some other provisions of the Constitution also underscore, the Framers expected that state courts would be significant, if not the principal, forums for federal jurisdiction. In that vein, the federal courts have never exercised the full federal jurisdiction available under Article III, Section 2. Moreover, unless Congress expressly requires that federal courts exercise exclusive jurisdiction over a matter, state courts have concurrent jurisdiction to hear “federal” issues. Congress rarely imposes such “exclusive” jurisdiction outside bankruptcy, patents, federal taxes, and immigration, and cases involving the United States as a party.

The focus of federal jurisdiction can change. During the early years of the Republic, there were few federal statutes, but much attachment to one’s state, with potential local prejudice against outsiders. Therefore, “diversity” jurisdiction (suits between citizens of different states) was more significant than “federal question” jurisdiction. Today, with the increased homogenization of Americans across states, and the explosion of federal law, the relative importance of the types of jurisdiction is reversed.

Federal courts, then, are courts of limited jurisdiction. The jurisdiction, indeed the very existence, of lower federal courts depends on affirmative grants from Congress. Only the original jurisdiction of the Supreme Court is guaranteed under the Constitution, though academics have argued (and Supreme Court opinions have strongly implied) that the Supreme Court also has the inherent power to review at least those lower court opinions that interpret the Constitution.

Once a federal court is authorized to hear a certain type of issue, it can exercise the full “judicial power,” a somewhat amorphous term that describes what courts “do” (e.g, resolve disputes between parties, issue final relief). However, the judicial power requires “cases” and “controversies.” A “controversy” in this context refers to a civil action or suit. A “case” can be either civil or criminal. The Supreme Court has declared that there is no functional significance from the use of one term or the other in the Constitution.

The “case or controversy” requirement limits the exercise of federal jurisdiction. There must be a concrete matter that involves a “live” dispute between adversaries. About a dozen states, such as Massachusetts, allow designated courts to issue “advisory opinions” on the constitutionality of laws at the request of certain parties, such as the state legislature. This is a common feature in foreign constitutional systems, preeminently the German Constitutional Court, which has emerged as the dominant alternative to the American approach. That system is “centralized” judicial review by a specialized court. The American system is “decentralized” judicial review, as any federal “Article III” court, as well as state courts, can decide constitutional questions. Such American courts also are not specialized, as they decide a host of other legal questions.

In a decentralized system of judicial review, the case or controversy requirement represents an important restraint on the inclination of a vast array of courts to inject themselves into constitutional matters. That said, the judiciary has often found ways to hear cases that appear collusive and to avoid hearing disputes it finds impolitic to decide. Related doctrines, such as the “standing” of a plaintiff to sue (has he suffered a clear enough injury) or the “ripeness” or “mootness” of a dispute (is there yet–or still–enough of a dispute), are very much driven by the facts of the particular case and do not lend themselves to neat and readily-applied tests.

Moreover, the Supreme Court as an institution may expand or contract these doctrines based on the attitudes of the justices towards the role of courts. Thus, the Warren Court greatly expanded the “standing” doctrine and made it easier in a number of ways for litigants to bring their disputes to federal courts. That judicial philosophy changed during the Burger and Rehnquist Courts, beginning in the mid-1970s, as Warren Court-era justices began to be replaced. The latest “standing” cases, decided by the Roberts Court concerning establishment clause claims, continue that trend.

More amorphous and less defined even than standing is the “non-justiciable political questions” doctrine. As early as Marbury v. Madison, the Supreme Court emphasized that there are certain kinds of cases beyond judicial review, even if all other particulars are met that would allow a court to hear the matter. Such cases may involve suits to enjoin the other departments from making discretionary political decisions, or attempts to review decisions by the other branches in military or diplomatic matters.

But the application of the doctrine is unpredictable, as a review of the federal courts’ recent approach regarding executive power in the conduct of the fight against terrorists shows. On the one hand, the Supreme Court injected itself into the executive’s domain by recognizing, for the first time (and implicitly overruling a contrary precedent), a right to habeas corpus for enemy combatant detainees not held in the U.S. On the other hand, the Court has not injected itself in other related matters, such as the admission of former detainees into the U.S. contrary to federal law and executive decision. Lower courts have cited the non-justiciable political questions doctrine to that end.

Article III, Section 2, clause 1, is also a pillar for the legitimacy of constitutional judicial review itself. It authorizes the courts to hear cases arising under the Constitution. Though the clause does not conclusively settle the question whether courts are free to disregard unconstitutional laws or must let the legislature repeal such laws (as some state courts determined), the federal judges early took the position that they are not bound by unconstitutional actions. During the 1790s, federal courts in several cases declared their power to exercise judicial review over state laws. More significant, one can identify four cases in which the Supreme Court explicitly or implicitly assumed a power to review the constitutionality of acts of Congress. All arose before Marbury.

Marbury v. Madison, decided in 1803, is the iconic case for judicial review. It has often been portrayed as revolutionary in that it “established” judicial review. It is more accurate to say that it is a political manifesto that provided a coherent defense of judicial review, but one that had already been made in other venues, such as Hamilton’s Federalist 78.

With one qualification, Chief Justice Marshall’s opinion is very cautious. As his wont was to avoid conflict with Jefferson, Marshall gave the President the specific result the latter wanted. Striking down the federal law was not novel, and the Jeffersonians’ criticism of the opinion was generally not directed at that part. The critics, instead, complained about Marshall’s implicit (and novel) claim that the Court could even issue direct orders to the President, an idea the Chief Justice tried to implement later, with mixed results, in a subpoena to Jefferson during the Burr treason trial.

Marbury, and Article III, also do not resolve whether the Supreme Court is the final arbiter of constitutional decisions. Presidents Jefferson, Jackson, Lincoln, Franklin Roosevelt, among others, asserted a “departmental theory,” that each branch is supreme within its own functions, lest one become “more equal” than the others. Marbury is best seen as a declaration of independence of the judicial branch from the others in a matter that directly involved the courts’ function. Extravagant notions of courts roaming far and wide as “final” or “ultimate” deciders of constitutional matters embody a more recent judicial conceit. While there are practical reasons that the judges’ views are entitled to respect from the other branches and the people, it is a blow against republican principles to declare that the opinions of judges are the Constitution itself.

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

Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

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. 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.

Building on the political theory of John Locke and Baron de Montesquieu, the Founders established an independent judiciary, more specifically, a Supreme Court. While the Constitution only establishes a Supreme Court, it was not long after the ratification of the Constitution that the first Congress passed the Judiciary Act of 1789 which established the U.S. Federal Judiciary. The act created a Supreme Court in which there were five associate justices and one chief justice. The first chief justice was John Jay—one of the three authors of the Federalist Papers.

The act also established circuit courts and district courts. The district courts had original jurisdiction while the circuit courts had appellate jurisdiction. The first Supreme Court justices had to ‘ride circuit’, meaning they served on the Supreme Court and the circuit courts. This practice ended with the passage of the Judiciary Act of 1891.

The number of judges, justices, and courts has varied over the years—usually expanded at a time of one party dominance when the party in power looks to increase its influence within the judiciary by expanding the number of available slots to which they can appoint judges of a similar ideological disposition. This is but one consequence of being vague, but the Founders had their reasons for not being overly specific about the structure of the judiciary.

First, the judiciary—while important for maintaining the rule of law and a system of checks and balances—was thought peripheral to the political process. This is not surprising given that the Founders’ intellectual influences—particularly Locke and Montesquieu—treated the judicial branch in a similar manner. Now they recognized, particularly Hamilton who expanded Lord Coke’s theory of judicial oversight, the importance of the judiciary, but it wasn’t seen in the same esteem as the other two branches. Even after the ratification of the Constitution the Supreme Court was thought less important as evidenced by the fact that Washington had a tough time filling all the seats as most would-be appointees chose to stay judges or legislators in their home state where they thought more important work was being done. Let us not forget that the Supreme Court’s first chambers were in the basement of the Merchant Exchange Building in New York City—then the capital of the U.S.

Second, the justices recognized that a growing nation would need a court to grow with it. This is not the same as saying we need a living Constitution, or that the Founders favored a loose construction of the Constitution, it simply means that the Founders understood the workload of the early courts would be relatively light given the length of time it takes to work through the appeals process from the state level up, and the fact that there were very few national laws meaning most cases of original jurisdiction would be heard at the state level as disputes over laws were more likely to occur over state laws.

Third, they knew the inherent dangers of an appointed judiciary. Appointing judges was preferable to electing them in order to insulate them from the effects of politics and public pressure, but it also put them in an advantageous position to control the path of the country relative to Congress and the Executive who had to be elected and had shorter tenures. Therefore, the size and structure of the judiciary was made dependent upon Congress as one way to curb the power of the judiciary.

What we should remember is that when the Founders were vague they were intentionally so, and when they were specific they were intentionally so. And the same goes for silence—such as with judicial review which is nowhere found in the Constitution except through the most creative jurisprudence. This flies in the face of those who would argue for a loose—or broad—interpretation of the Constitution. To assume otherwise is to deny the Founders wrote intentionally or were aware of what they were writing. While they could not foresee all issues or problems, they chose their words carefully and we should treat them as though they did.

Kyle Scott is a lecturer in the Department of Political Science and Honors College at the University of Houston. His third book, Federalism, is due out March 17th. Dr. Scott has written on the Federalist Papers for Constituting America and proudly serves as a member of its Constitutional Advisory Board. He can be reached at kascott@uh.edu. Or, you can follow his blog at www.redroom.com/member/kylescott

Guest Essayist: Julia Shaw, Research Associate and Program Manager of the B. Kenneth Simon Center for American Studies, The Heritage Foundation

Article II, Section 4

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.

Impeachment is the only constitutional way to remove a President (or another official or a judge) for misconduct. Publius notes in Federalist 64 that the “fear of punishment and disgrace” will encourage good behavior in the executive. Impeachment is an integral part of maintaining the separation of powers and the republican form of government.

To understand the impeachment process, we must look to the related clauses in Article I. Unlike the Rules and Expulsion Clause, by which the house to which a Member of Congress belongs may expel that member, the legislature and the judiciary participate in the impeachment of a president. A vote for impeachment is not equivalent to a vote for immediate removal. Impeachment refers to the House’s vote to bring charges against an officer, and that vote begins a particular process. After the House impeaches a president, the Senate tries him with the Chief Justice presiding over the proceedings. In Federalist 65, Publius notes that the Senate would have the requisite independence needed to try impeachments: “What other body would be likely to feel confidence enough in its own situation to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused and the representatives of the people, his accusers?” The supermajority requirement guards against impeachments brought by the House for purely political reasons. The president may not pardon a person who has been impeached.

Impeachment disciplines a President who abused his constitutional responsibilities. As Stephen Presser suggests in his essay on Article I, Section 2, Clause 5 in the Heritage Guide to the Constitution, when the President commits an impeachable offense, the Members of the House are obligated by their oath to preserve the Constitution to deal with the offense. But, what constitutes an impeachable offense? At the Constitutional Convention, the delegates initially proposed “mal-practice and neglect of duty” as grounds for impeachment, but the Committee of Detail narrowed the basis to treason, bribery, and corruption. George Mason suggested “high Crimes and Misdemeanors” as another grounds for impeachment when his previous suggestion of “maladministration” was rejected for rendering the President’s too dependent upon Congress. Impeachment was meant to encompass serious offenses, but not to be a political tool to block a president from exercising his authority.

Impeachment is a remedy to be used in extreme situations, and Congress has used this device sparingly over the past two hundred twenty years. Only two Presidents have been impeached (Richard Nixon resigned before the House voted to impeach), and only a handful of judges have been impeached and subsequently removed from office. No president has been successfully removed from office.

In Federalist 77, Publius explains that “being at all times liable to impeachment” would prevent the president from abusing his power. Impeachment is not equivalent to a simple majority vote of no confidence, as is sufficient to remove a prime minister in parliamentary system. Rather, it is a process that engages the legislature and the judiciary in a grave constitutional act to remove the head of state. Perhaps it is so rarely used, and so rarely needed, because the stakes are so high.

Julia Shaw is the Research Associate and Program Manager of the B. Kenneth Simon Center for American Studies at the Heritage Foundation.

Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute

Article II, Section 3, Clause 1

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he 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 think proper; he shall receive Ambassadors and other public Ministers; he shall take care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.” Lord Acton, 1887

Mitch Ohnstad (reporter): “Why do you rob banks, Willie?”
Willie Sutton (bank robber): “Because that’s where the money is.”

In Worcester v. Georgia (1832) The United States Supreme Court vacated the conviction of Samuel Worcester, holding that the Georgia statute prohibiting non-Indians from being present on Indian lands without a license from the state was unconstitutional:
Response of President Andrew Jackson: “John Marshall has made his decision; now let him enforce it!”

The above quotations constitute the texts for today’s essay. Readers will understand their relevance for a new century in which the United States President exercises unprecedented personal power, controls unprecedented national wealth and bestrides the separation of powers like a mighty colossus. Such a situation, unconceivable to the Founding Fathers in 1787, places the seemingly innocuous words that I here address into a significantly more worrying perspective.

So let me begin with state of the union addresses. The Founders naturally were concerned to protect the United States from the abuses associated with European monarchs, most especially, of course, King George III. One perceived abuse was the British monarch’s ritual of addressing the opening of each new Parliament with a list of policy ‘mandates’ rather than ‘recommendations. So the word ‘recommendations’ is truly significant as written into the Constitution, as are the words ‘from time to time’. Both insertions are designed to downplay the importance of the occasion.

The first president, George Washington, defined the meaning of ‘from time to time’. Since 1790, the state of the union message has been delivered regularly at an approximately one year interval. Whether such messages would be delivered orally or in writing, however, would depend, until FDR, on each president’s perceived role. The Federalists, Washington and Adams, personally addressed the Congress. The Republican, Jefferson strongly objected to this ritual and initiated the written address. This was continued until 1913 when America’s first Imperial President, Woodrow Wilson, reverted to the oral address, an approach followed by Harding and by Coolidge in his first address. Thereafter Coolidge and Hoover, as strict constructionists, reverted to the written model.

From FDR onwards, U.S. presidents have strutted across the stage making expansive oral addresses designed to project an image of presidential authority across an increasingly credulous national audience. Fortunately, the United States Congress has not (yet) abandoned its legislative authority. Many a presidential state of the union aspiration turns out to be dead-on-arrival once it enters the doors of the Capitol.

Section 3, Clause 1 – which imposes a duty rather than confers a power – is the formal basis of the President’s legislative leadership, which has attained enormous proportions since 1900. This development owes a lot to the rise of political parties, and to an accompanying recognition of the President as party leader, and to the introduction of the spoils system as a means of exerting presidential influence over Congress. Presidents frequently summon both Houses of Congress into special sessions for legislative purposes, and the Senate alone, for consideration of nominations and treatises. The power to adjourn the Houses has never been exercised.

The ‘right of reception’ has been interpreted to reinforce presidential authority most especially in the area of foreign affairs. The term ‘Ambassadors and other public ministers’ embraces not only any possible diplomatic agent that any foreign power may accredit to the United States, but also all foreign consular agents, who, therefore, may not exercise their functions in the United States without an exequatur from the President. The power to receive includes the right not to receive, to request their recall, to dismiss them and to determine their eligibility. These powers have the unfortunate consequence of making the President the predominant mouthpiece of the nation in its dealings with other nations, surely not something that the Founders (Hamilton was an exception) ever anticipated.

The President must ‘take care that the laws be faithfully executed.’ This duty has been used as an ‘open sesame’ opportunity for unscrupulous presidents to transgress the separation of powers. Some presidents have claimed an authority under this provision to impound monies appropriated by Congress. President Jefferson, for example, delayed for over a year the expenditure of monies appropriated for the purchase of U.S. gunboats. FDR and several of his successors from time to time refused outright to expend appropriated monies. In response to such an attempt by President Nixon, the United States Supreme Court finally ruled that such attempts are unconstitutional.

Presidents have also asserted, from time to time, that ‘faithful execution of the laws’ empowers them to suspend the writ of habeas corpus – that most precious legal protection of individual liberty against the state. Article I provides that this privilege may not be suspended except during times of rebellion or invasion. The Supreme Court has determined that such suspensions fall within the jurisdiction of Congress. Yet President Lincoln regularly suspended the privilege during the civil war, albeit eventually and reluctantly succumbing to union-opposition pressures to seek congressional approval.

The Supreme Court subsequently would specifically weaken its own supervisory role in this regard. In Mississippi v Johnson 1867, the Supreme Court ruled that the judiciary may not restrain the President in the execution of laws. In so doing, the Court denied an injunction preventing President Andrew Johnson from executing the Reconstruction Acts, which were claimed to be unconstitutional. Executive acts, when performed, remain subject to judicial scrutiny.

The President’s right to commission ‘all the Officers of the United States’ is also open to serious abuse by unscrupulous incumbents. One of the most famous legal cases in early United States history was induced by such abusive behavior. John Adams, the outgoing Federalist President signed many commissions to the judiciary on his final day in office, hoping as incoming Republican President Thomas Jefferson put it ‘to retire into the judiciary as a stronghold.’ Fortunately, in his haste to complete the coup d’etat, Adams neglected to have all the commissions delivered. President Jefferson and his Secretary of State, James Madison – who knew more than a little about the nature of the Constitution – refused to deliver the remaining commissions.

William Marbury had been appointed by Adams as Justice of the Peace in the District of Columbia; but his commission had not been delivered. So, Marbury petitioned the Supreme Court to force Secretary of State Madison to deliver the documents. However, in its famous 1803 Marbury v Madison judgment, the Supreme Court, with John Marshall as Chief Justice, denied Marbury’s petition, holding that the part of the statute upon which he based his claim – the Judiciary Act of 1789 – was unconstitutional.

It is good to end this essay with an early example where a serious abuse of presidential discretion was reined in. Unfortunately, this would be a rare victory in the battle to constrain America’s increasingly imperial presidency, as the executive branch fairly systematically elbowed its way through the separation of powers in order to impose its own brand of absolutism on the American Republic.

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia. He is author of Liberty and the State (The Locke Institute 1993), co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government (The Locke Institute and the Institute of Economic Affairs 2009) and the author of Never Let A Good Crisis Go To Waste (The Locke Institute 2010). All books are available at www.amazon.com. See also www.thelockeinstitute.org and www.charlesrowley.wordpress.com.

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article II, Section 2, Clause 3

3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

The National Labor Relations Board is a federal agency established under Franklin Roosevelt whose assigned duty it is to protect employees, while balancing the rights of unions and management. In an unprecedented move, it has recently moved to bar Boeing from opening a second aircraft assembly line in South Carolina rather than Washington state. In a second unprecedented move, the agency is about to reverse decades-old policy and allow unions to organize small groups of employees to gain a toehold in the company, rather than the entire company workforce at once (a more difficult project).

The agency currently is dominated by union lawyers, and one of the main advocates for these changes is Craig Becker, a controversial former lawyer for the SEIU, who has written that management should have no say whatever in unionizing activities. After his nomination was rejected by the Senate (on the failure of a cloture vote), President Obama nevertheless appointed Mr. Becker to the board a month later, while the Senate was in recess.

Recess appointments have been practiced since the Constitution went into effect. Initially, Congress was very much a part-time legislature, so there was an obvious need to allow the President to appoint officers to posts that might become vacant while the Senate was not in session. Indeed, that was precisely the early understanding. Vacancies might “happen” (in the terminology of Article II, Section 2, cl. 3) if they arise during the recess.

It may be asked why there is any need for recess appointments now that the Senate meets regularly during the course of the year. Surely, there is no need to have recess appointments just because the Senate is on a brief Easter recess or President’s Day long weekend. Even if the recess is longer, say during the month of August, it is unlikely that the President would even be able to gear up for an appointment until the recess is almost over. In the unlikely event of a government crisis, the Congress almost certainly would reconvene quickly. That said, recess appointments are useful for lower-level appointments on which the Senate has failed to act for some time. Moreover, they can protect the President’s constitutional prerogatives, if the Senate purposely seeks to weaken the President by failing to act on his nominations made while the Senate is in session.

Presidents have long interpreted the clause to give them a writ to make recess appointments for vacancies as long as those vacancies exist during the recess, even if they arose earlier. This interpretation has been upheld judicially. But even though it may be constitutionally justifiable, it raises serious political issues. Presidential appointments for vacancies that arise while the Senate is in session, but are not filled until the President can do so unilaterally when the Senate is in recess are delicate matters. Such appointments can easily be seen as end-runs around the constitutional blending and overlapping of functions.

Now add to that if the recess appointment is of an individual who was previously rejected by the Senate. The politics of such a move clearly invite Senatorial rebuke, and President Obama’s appointment of Craig Becker was lambasted by a number of Republican Senators.

As early as 1863, Congress tried to rein in recess appointments, by prohibiting payment of salary to anyone appointed during the Senate’s recess, until the Senate confirms. Today, the Pay Act, 5 U.S.C. 5503, prohibits such payments only if the vacancy already existed while the Senate was in session. The act also provides certain exceptions. For example, it does not restrict salaries of recess appointees if the nomination was pending when the Senate recessed. Neither does the salary restriction apply if the Senate, within 30 days before the end of a session, rejected a nominee of the President to the office. However, that exception, in turn, does not apply if the President during the recess appoints the rejected nominee. It should be noted that the end of a “session” is the end of the annual term. Thus, when Congress adjourns this December, it will be the end of the first session of the 112th Congress. Merely rejecting a nominee before a holiday recess is not the end of a session.

One wonders, therefore, whether President Obama’s NLRB man, Craig Becker, is entitled to payment of salary. One argument he might make is that the nomination technically was not formally rejected because it was filibustered and never came up for a vote on the merits. Since it was not withdrawn, the nomination technically was still pending when the recess occurred.

By statute, if a recess appointment is made, the appointee’s name must be submitted to the Senate soon after its next session begins. President Obama has done so with Mr. Becker. If the appointment is not confirmed, the officer may continue to serve, but must step down at the end of that next session. Thus, Mr. Becker’s term will end in December of this year, as he was appointed by the President in March, 2010. If Mr. Becker is rejected, he will not be permitted to draw a salary, if a routine provision to that effect in funding bills continues to be used.

Finally, the political virtuosity of the recess appointment device is shown by the fact that, even if the Senate rejects Mr. Becker, there will be new vacancies on the NLRB, and the President can wait for the next recess to appoint his ideological fellow to the agency once more. Mr. Becker could then serve until the end of 2012, again without Senate confirmation.

Unlike appointments to administrative or executive positions, recess appointments of judges are uncommon. Bill Clinton made one; George W. Bush made two; Barack Obama has made none so far. No President has made a recess appointment to the Supreme Court since Dwight Eisenhower, who appointed Chief Justice Warren, Justice Brennan, and Justice Stewart in that manner.

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

Article 2, Section 2, Clause 2

2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: 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.

As Publius reminded his readers in the forty-seventh Federalist, Montesquieu called the Constitution of England “the mirror of liberty”—so esteemed for its separation of governmental powers. So long as no one person or set of persons can exercise legislative, executive and judicial powers, neither king nor aristocrats nor commoners can dominate the country. In the United States, where everyone is a commoner, separation of powers remains relevant to the sustenance of liberty. If “the accumulation of all powers” in “the same hands” can “justly be pronounced the very definition of tyranny,” then even a cabal of commoners might so empower themselves, serving as lawgivers, judges, jurors and executioners over their fellow citizens.

But if separation of powers serves as an indispensable bulwark of political liberty (Publius continues), one must understand it rightly, as Montesquieu did. Montesquieu “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.” He only meant that no one department may “possess the whole power of another department.” To make the three branches of government entirely independent of one another would amount to making three distinct governments—uncoordinated, ineffective, hardly able to govern at all. No person or persons could be held responsible for government action or, more likely, inaction.

The president’s power to make treaties and nominations exemplifies these principles of liberty and responsibility. Under the Articles of Confederation, Congress negotiated treaties. This required the dispatch of one or more delegates, thus depriving one or more states of representation. On the other hand, a treaty, once ratified, is a law—indeed, a supreme law. The executive branch must not legislate. Further, if treaties are laws disputes will arise requiring judicial attention—the province of neither legislature nor executive. If neither the Congress nor the president alone can assume the responsibility of treaty making, the only remedy can be to divide treaty-making into two parts, assigning each part to a different branch.

Then there is the matter of federalism. Treaties are the nation’s business, but do the states not want their interests represented, as well?

The Framers’ solution: the executive branch will negotiate treaties; the Senate will ratify them; the Supreme Court will adjudicate case arising under them. But this separation of powers and duties does not and cannot imply isolation of powers and duties. Senators can advise the president on the treaty (before and after negotiations); although negotiations themselves ought to be confidential; they can then consent or ratify the treaty resulting from those negotiations. Thus both branches exercise mutual control over treaties without interfering with or encroaching upon one another.

The same goes for presidential appointments. Who will control the apparatus, the administration, of the American national state? Not Congress directly: as James Wilson argued at the Convention, “a principal reason for unity in the Executive was that officers might be appointed by a single, responsible person,” thus avoiding “intrigue, partiality, and concealment.” At the same time, complete presidential control over appointments could allow a president to create offices and fill them with his favorites—the very definition of “corruption” as the term was used in the eighteenth century, and one of the most frequent complaints against monarchy. (Recall the words of the Declaration of Independence: King George “has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance.”) Again, the solution was to divide and correlate two powers, giving nomination to the president and appointment to the Senate. The sovereign people can clearly observe both of these governing actions and finally hold their representatives responsible for them.

The construction of the presidential powers of treaty-making and of nomination thus addresses the crucial issues of the character of the American regime and the structure of the American state. The people retain their sovereignty through their elected representatives. No one set of representatives governs without restraint from other sets of representatives. Through the Senate, the states have a decisive `say’ in both international lawmaking and the composition of the national administration. Both republicanism and federalism are preserved.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

Guest Essayist: Andrew Baskin, ConSource Researcher

Article II, Section 2, Clause 1

1: 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 of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

The President of the United States may choose to be addressed merely as “Mr. President,” but another title more accurately conveys the tremendous power and prestige associated with the modern position; that of “Commander in Chief.” This fact might have surprised the nation’s founders. They did not intend for the position of military leader to be the most important function of the chief executive. The title itself is grouped in a clause which also instructs the President to form a cabinet and issue pardons. Congress, not the President, received the more substantial powers of declaring war and raising an army. Yet in modern times, it is the President who firmly controls the strongest standing military in the world, with the ability to act on a global scale without consulting the legislative branch of government. Congress has not declared war since the 1940s, but U.S. Presidents have deployed millions of soldiers into dozens of military engagements. The meaning of Article II, Section 2, Clause 1 has not changed, but its broad mandate and the increased military might of the United States has resulted in the development of a powerful executive that the framers of the Constitution could scarcely have envisioned.

During the drafting of the Constitution, few objected to giving the President supreme command over the military, especially once the principle of creating a unitary executive had been agreed upon. The bloody struggle for independence from Britain and the problems involved in coordinating the efforts of independent-minded States had taught America’s founders the importance of having at times a single decision-maker, able to marshal the resources of the entire country in its common defense. Many of the existing State constitutions already placed their governor or chief executive in charge of the militia. John Jay, writing in Federalist No. 4, argued that the separate armies of the States, “in a proper line of subordination to the Chief Magistrate,” would perform far more effectively than a divided military. However, in keeping with the principle of checks and balances, the unquestioned military authority of the executive branch was mitigated by legislature. Crucially, the Commander in Chief only performed his duties “when called into the actual Service of the United States.” Alexander Hamilton believed that this provision, coupled with the lack of any significant standing army or navy, meant the President would serve merely as “first General and Admiral of the confederacy.” Except in cases of national defense, Congress would have to declare war and provide funds in order for the President to effectively exercise his authority as Commander in Chief. Civilian control of the military was thus firmly established and divided between the executive and the legislature, while also establishing a clear chain of command. The President would have very strong powers as Commander in Chief during wartime, but otherwise would depend on the approval and cooperation of Congress.

In upholding the Constitution, the President of the United States, in his capacity as Commander in Chief, swears to provide for the “common defense.” While it would appear at first glance that the framers intended for the President to act in this capacity only when the United States was attacked or when authorized by Congress, the intricacies of international conflict and diplomacy often complicated which branch of government held the edge in war powers. When pirates attacked American merchant ships in the early 1800s, President Jefferson responded by arming merchant ships and invading Tripoli. Congress authorized the measure, but did not declare war. Hamilton insisted that “when a foreign nation declares…war upon the United States…any declaration on the part of Congress is nugatory; it is at least unnecessary.” Such an interpretation suggested that the Commander in Chief could deploy the military in any way he saw fit, if America had been attacked first. Nearly fifty years later, the creation of a standing army allowed President Polk to initiate the Mexican-American War. American forces ordered close to the disputed boundary with Mexico fought a border skirmish, and Congress was forced to support the actions of United States troops already committed to battle. The position of Commander in Chief proved to be the decisive foreign policy tool for a President willing to wield it.

The balance of power would continue to shift back and forth between Congress and the President, until decidedly moving in favor of the executive branch during the Cold War. In order to compete with the Soviet Union, Congress approved huge increases in military spending while simultaneously differing to a series of strong Presidents on foreign and military policy. The United States, now with military commitments around the world, needed a Commander in Chief willing to exercise American power swiftly, without constant consultation with Congress. During the Korean War, President Truman created a precedent by specifically citing his position as Commander in Chief as sufficient authority for deploying troops to the Korean peninsula. By further classifying the deployment as a “police action,” Truman avoided seeking the permission of Congress. Like the Congress of Polk’s day, the legislature was thus faced with the uncomfortable decision of either supporting the President or cutting funding for troops already in combat. In most subsequent military actions, including Vietnam and the wars in Iraq and Afghanistan, Congress has passed bills authorizing the use of military force. Other times, such as President Reagan’s invasion of Lebanon or President Obama’s bombing of Libya, the executive branch has relied solely on the Commander and Chief clause. Under this interpretation, which continues to hold sway, the President can unilaterally use the military as he or she sees fit when American interests are at stake.

The framers rightly predicted that the country would need an executive strong enough to respond to the volatile emergencies of war, but they could not have foreseen the future success and growth of their fragile republic. The powers of the President thus expanded exponentially along with America’s military and international commitments. At the same time, Congress diminished its own war making powers, first by creating a standing military force and then by passing resolutions authorizing indefinite and nearly unlimited military action. The American people should be grateful that the framers designed a flexible system which allowed for a strong Commander in Chief in times of crisis, but they should also be mindful of the restrictions originally placed on the President, and the vital war-time responsibilities given to Congress.

Andrew Baskin is a researcher at the Constitutional Sources Project (www.ConSource.org). His past projects have focused on the evolving nature of war powers in the United States. He graduated with a B.A. in history from Washington University in St. Louis.

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article II, Section 1, Clause 8

8: Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

When a new duke was installed in the old Republic of Venice, he took a prescribed oath of office that included a list of limitations on his power. Just in case his memory conveniently weakened as his fondness for office grew, the oath and its limitations were read to him in a formal ceremony every two months. Remembering the horrified reaction in some quarters in Congress when the new leadership read the Constitution at just the opening of this session, one is inclined to believe the Venetians were on to something.

Although the Constitution requires other officials to take an oath of office, the President’s is the only one expressly prescribed. One question that arose is whether the oath is a precondition to the assumption of office. George Washington took office March 4, 1792, yet did not take the oath until April 30 of that year. Similarly, the practice of the British constitution, with which the Framers were intimately familiar, was that the coronation oath might not be administered until some time after the heir’s succession to the vacant throne. The President assumes his office when the constitutionally-designated day, January 20, arrives. However, before the President can execute the functions of his office, he must take the oath. Under the current practice of inauguration (which increasingly does resemble a coronation) and the demands of office, the matter has ceased to have practical significance.

Of more continuing relevance is the question of the scope of independent power the oath gives the President. Just as the effectiveness of the periodic recitation of the Venetian oath on restraining executive excess depended largely on the confluence of political events and the duke’s personality, the use of the oath as a source of executive power by the President has been similarly shaped. President Lincoln cited his duty to “preserve, protect, and defend” the Constitution as ample authority for his initial steps to combat organized secession, though he sometimes also referred to the three other sources of broad implied executive powers, the “executive power” clause, the commander-in-chief clause, and the clause that requires him to “take care that the laws be faithfully executed.” In a defense of his actions made to Congress in July, 1861, Lincoln declared that he was acting under his oath to “preserve the Constitution” and the Union, when he called forth the militia to suppress the rebellion, proclaimed a blockade of Southern ports (an act of war), directed large increases of the Army and Navy, ordered $2 million (yes, that was a lot of money then) of unappropriated funds paid out of the Treasury, pledged the unprecedented and astronomical sum of $250 million of the government’s credit, and ordered the military detention and suspension of the writ of habeas corpus for those engaged in or “contemplating” “treasonable practices.”

Laying aside the emergency of the Civil War, the oath has been used by Presidents in more pedestrian ways to assert independent authority. The issue has come up in disputes between the Supreme Court and the President, and the Congress and the President. Early in our history, the “departmental theory” of judicial review dominated. That theory held that each branch was the final and independent interpreter of the powers entrusted to it under the Constitution. Jefferson wrote in 1801 that each of the branches of the federal government “must have a right in cases which arise within the line of its proper functions, where, equally with the others, it acts in the last resort and without appeal, to decide on the validity of an act according to its own judgment, and uncontrolled by the opinions of any other department.” Chief Justice Marshall in the Marbury Case used the oath he took as providing constitutional legitimacy for judicial review.

Madison echoed Jefferson. So did Andrew Jackson, Abraham Lincoln, Franklin Roosevelt, and others. The attorneys representing President Andrew Johnson during his Senate trial in 1868 on impeachment charges relied on the President’s independent constitutional position, validated by his oath of office, to defy the Tenure of Office Act of 1867. Johnson claimed that the act, adopted over his veto, deprived him of his constitutional powers to remove executive department officers by requiring him to obtain Senatorial consent before firing Secretary of War Edwin Stanton.

The issue continues to resonate. The President’s first duty, as so many incumbents have argued, is to the Constitution as the Supreme Law. Moreover, the President is an independent actor in that regard. Hence, the President can veto a bill from Congress if he believes it to be unconstitutional, even if the Congress and an existing Supreme Court precedent point to its constitutionality. Questions of greater constitutional difficulty and shadowiness arise about Presidential signing statements and the President’s refusal to enforce a law that has been duly enacted, the latter of which also implicates the President’s Article II duty of faithful execution of the laws.

Both issues are live political matters. Just as his predecessors did, President Obama has resorted to the very signing statements whose use by George W. Bush he vocally decried. The latest is a statement that he would continue to employ “czars” (presidential policy directors not subject to Senatorial confirmation) despite the fact that the budget he was signing after the deal reached with Congress prohibited funding for 4 such officials (out of 39). The President has claimed that the budget restriction violates his constitutional authority. Such statements are not given legal significance by the courts when interpreting the constitutionality of a statute, in part because they tend to be rather vague and thin on constitutional analysis. But they certainly are a measure of the President’s willingness to claim that his constitutional powers are not subject to Congressional limitation. At the same time, the statute is now the law of the land, and the President’s proper choice should have been to veto the bill, not to refuse to enforce parts, in effect signing a bill into law that was not the same as presented to him.

Not enforcing an already-existing and properly enacted law is the most troubling. For instance, the Obama administration has announced that it will not defend the constitutionality of the federal Defense of Marriage Act (DOMA), because the President believes the law to be unconstitutional. Yet, the law was adopted by a Congress and signed by a President (Bill Clinton) who must have believed the law to be constitutional. Moreover, there is no Supreme Court opinion that the law is unconstitutional, and there has been no great change in social conditions or political composition of the voters. While a President’s oath to support the Constitution gives him some leeway in administering law, and while a predecessor’s acts cannot inflexibly bind a President, in this matter the President’s position is at odds with the actions of Congress and two Presidents, of different parties. There is a tension between the President’s claim that the oath directs his first duty to the Constitution, and the Constitution’s own command that he faithfully enforce the laws.

These issues are not easily resolved. It is clear, however, that the oath is far more than mere formality. History has shown it to be another factor in the Constitution’s separation of powers and blending and overlapping of functions, swirling in the murky vortex where constitutional law and politics lose their distinctness.

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

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation
Article II, Section 1, Clause 7

7:  The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. 

The recent news of a precipitous drop in the president’s income (from $5.5 million in 2009 to $1.73 million last year) might give occasion to look at how the president is compensated. The Constitution provides for compensation that can’t be increased or decreased during a president’s term. So, a pay raise is out of the question to make up for the shortfall the president has experienced in book sales.

The Massachusetts Constitution of 1780 provided for a compensated executive and gave reasons for doing so. The provision specifies that a paid executive would not be unduly dependent on benefactors, would not be distracted from his duties by the need to earn money and would be able to maintain the dignity fitting such an officer of government. See Massachusetts Constitution, part 2, chapter 2, section 1, article 13.

When the attention of the Philadelphia Convention turned to the question of paying the executive created by the Constitution on June 2, 1787, Benjamin Franklin objected with a written statement. His objection was that the combination of the desire for the prestige of the office and the desire for money would attract the wrong kinds of candidates. He also feared that the president’s salary might become so great that he would be tempted to use the power of the government to collect increasing tax revenue and that resistance to the high taxes would require more oppression in a spiraling cycle. Franklin thought the president ought not to be paid at all, and invoked the example of George Washington’s unpaid service as a general during the War for Independence as precedent.

Franklin had been an architect of the ill-fated Pennsylvania Constitution of 1776 with its unicameral legislature, thirteen-person executive and no upper house in the legislature. This Constitution was copied by the French, ironically the same year Pennsylvania finally decided to replace it. Perhaps this ill-fated endeavor led the other delegates to mistrust Franklin’s advice on compensating the executive of the new national government. On July 20, the vote in favor of compensation was unanimous.

Franklin still had an important role to play in drafting the clause as one of the delegates (with John Rutledge) who proposed adding the portion prohibiting the president from receiving additional emoluments from either one of the states or from the national government.

Noah Webster’s 1828 Dictionary defines “emolument” as: “The profit arising from office or employment that which is received as a compensation for services, or which is annexed to the possession of office, as salary, fees and perquisites.” Thus, this clause helps to preserve the system of federalism by preventing one state from seeking undue favor through payments to the president (which would, of course, look like, if indeed they were not, bribes). Prohibiting emoluments from the national government also precludes an end run around the requirement of a fixed salary that does not change during the presidential term.

As an aside, it seems arguable that any fringe benefits in addition to salary might be constitutionally suspect depending on how strictly we understand the term “emoluments.”  This simple and clear clause has not been the subject either of much commentary or controversy. The first Congress did discuss the clause but only to ask whether it was appropriate to pay the Vice President since pay for that office was not specified in Article II. See Annals 1:646-651 (July 16, 1789). Congress eventually decided to pay the vice president $5,000 a year. The first compensation for the president set by Congress was $25,000. The president’s current salary was set by Congress in 2001 at $400,000.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.
Guest Essayist: Joe Postell, University of Colorado at Colorado Springs

Article II, Section 1, Clause

6:  In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office,9  the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

 This clause is the presidential succession clause, establishing procedures for dealing with the death, disability, resignation or removal of the President.   

At first the clause appears rather straightforward.  It declares that the Vice President is next in the line of succession, and that Congress can, by law, establish the remaining line of succession.  However, upon further inspection, there are a few important issues that are not clearly resolved. 

The Convention originally provided that the president of the Senate (which had not yet been determined to be the Vice President) would replace the President in the case of death, disability, resignation or removal.  In late August Gouvernor Morris suggested replacing the president of the Senate with the Chief Justice.  In early September the Convention settled on the Vice President. 

The first issue is whether the Vice President becomes the President in such cases, or whether the Vice President merely becomes the acting President.  This issue is important because if the VP merely becomes the acting President, he would be a temporary placeholder while a new President is selected.  In fact, the clause suggests that a special election for President be called in the case of the President’s death, disability, resignation or removal, rather than the automatic ascension of the VP to the office.  James Madison actually insisted upon the possibility of a special election for the President at the Convention. 

The other ambiguity of the clause had to do with the issue of the President’s “disability.”  As John Dickinson noted at the Constitutional Convention, “what is the extent of the term ‘disability’ & who is to be the judge of it?”  If the Congress can declare the President to be disabled, the Constitution’s separation of powers would be subverted by basically giving the Congress the power to choose the President.   

Both ambiguities were resolved by the Twenty-Fifth amendment, with an assist from John Tyler.  When President William Henry Harrison passed away in 1841, Tyler boldly claimed that he was not merely the VP acting as President, but was the President for the remainder of Harrison’s elected term.  By doing so he prevented the possibility that an election would be called to establish a new President (Harrison passed away very early in his term, a result of contracting pneumonia at his unusually long Inaugural Address.) 

Tyler was criticized for this action, but his precedent has stood the test of time.  The Twenty-Fifth Amendment, passed in 1967, codifies the Tyler precedent by stating that “the Vice President shall become President” if the President is removed from office, resigns, or passes away.  However, in the case of presidential disability (formally communicated to the Speaker of the House and the President pro tempore of the Senate), the Vice President merely becomes “Acting President.”

Amendment XXV also cleared up the issue of presidential disability by creating a procedure for establishing the president’s disability.  While the Tyler precedent helped ease the transition of power from President to VP in cases of death, resignation, or removal of the President, it also made VPs hesitate before assuming the presidency in the case of disability.  This is because the Tyler precedent suggested that whenever a VP assumed the presidency, he became President in full, not just Acting President.  Thus, if the President’s disability were cured, there would be a question whether the VP needed to revert back to his earlier position. 

After President Garfield was shot in 1881, for example, he was incapacitated for eighty days, while his VP hesitated to assume the office in case Garfield would recover.  The same issue occurred following Woodrow Wilson’s stroke in 1919. 

The Twenty-Fifth Amendment established a protocol for determining whether a disability existed, and how the President could be restored to power after the disability is gone.  It allows the President to declare himself disabled, and to resume the office when he formally declares that the disability has ended. 

In situations where the President is unable (or unwilling) to declare himself disabled, the Vice President, along with a majority of the cabinet, is authorized to declare the disability.  If the President disagrees with the decision of the VP and the cabinet, Congress has to resolve the disagreement. 

The succession of the chief executive of the country is, thankfully, an issue that has not caused great discord in American politics.  But the Framers were well aware that succession to the chief executive power, which was usually the throne, was an issue that had fractured societies for centuries.  As with so many other important constitutional questions, the Framers refused to allow these issues to be settled by appeals to the sword.  Rather, they established a framework for such contentious issues to be resolved by law, rather than arbitrary force or will.