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Article II, Section 1, Clause 5 of the United States Constitution

Guest Essayist: James D. Best, author of Tempest at Dawn

Article II, Section 1, Clause 5

5: 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.

The president of the United States must meet three eligibility requirements. He or she must be a natural born citizen, be at least thirty-five years old, and have resided within the United States for fourteen years.

The first eligibility requirement is that the president be a natural born citizen.

There is an obsolete way to meet the citizenship requirement. The office seeker could have achieved citizenship before nine states ratified the Constitution. With this proviso, the eight foreign-born delegates to the Federal Convention would be eligible. Before ratification could become a possibility, the Constitution had to make it out of the statehouse, so it was tactful to make every delegate eligible for the executive position.

If a modern candidate is less than two-hundred and twenty years old, he must be a natural born citizen. Someone born inside the United States is a natural born citizen. Although some disagree, persons born outside the United States to United States citizens are considered natural born citizens. The first Congress in 1790 declared that “the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens.” The only reason this did not close the argument is that a Congressional statute cannot alter or clarify the supreme law of the land, but it certainly can be used to determine intent of the framers.

What was the intent of the framers? It actually varied by individual, as it did on many issues. When they debated this clause, Benjamin Franklin said, “When foreigners after looking about for some other country in which they can obtain more happiness, give a preference to ours it is a proof of attachment which ought to excite our confidence and affection.”¹

Gouverneur Morris disagreed. “As for those philosophical ‘citizens of the world,’ I don’t want them in public councils. I do not trust them. A man who shakes off attachment to his country can never love any other.”¹

(The debates can enlighten on original intent, but in the end, it was the votes that determined what the Constitution meant.)

The president must also be at least thirty-five years old upon taking the oath of office. Today, thirty-five seems young. Theodore Roosevelt was the youngest president at forty-two, and John F. Kennedy was the youngest elected president at forty-three. In 1787, thirty-five was not young. Alexander Hamilton was still five years away from eligibility. His fellow delegates Jonathon Dayton, John Mercer, Richard Dobbs Spaight, and Charles Pinckney were all younger. Even the Father of the Constitution, James Madison, was only thirty-six.

The last eligibility requirement is that the president must have resided within the United States for fourteen years. Justice Story opined that “residence in the constitution, is to be understood, not an absolute inhabitancy within the United States during the whole period; but such an inhabitancy, as includes a permanent domicil in the United States.” Due to draft wording of this clause and the precedent-setting election of Herbert Hoover, it is generally accepted that the fourteen years can be cumulative.

It is also interesting what is not included in this clause. There are no religious, property, hereditary, or military service requirements. Also, Fifty-five men framed a constitution that requires no amendment for a woman president.

¹The Franklin and Morris quotes have been changed to first person from the third person used by James Madison in his notes.

James D. Best is an author who writes historical novels and contemporary novels with a strong historical theme. Tempest at Dawn is a dramatization of the 1787 Constitutional Convention.

April 20, 2011/12 Comments/by Janine Turner and Cathy Gillespie

Article II, Section 1, Clause 4 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 1, Clause 4, Gary McCaleb 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 3, Article II Section 1 Clause 4, Constitutional Amendment XII, Constitutional Amendment XII, Gary McCaleb

Guest Essayist: Gary S. McCaleb, Senior Counsel, Alliance Defense Fund

Article II, Section 1, Clause 4

4: 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.

“Chusing the Electors,” or “Interstices and the Constitution”

“Interstice” is a word that has long bemused me for some long-forgotten reason. Interstice refers to the space between things; usually small gaps within a larger framework. You can’t escape interstices—you will find interstices even between the most precisely machined and measured surfaces.

The language of our Constitution might be thought of as being precisely machined—each part fits “just so” with the next part, and the whole has worked so well that it has been amended just 17 times since the it and the Bill of Rights became effective over 200 years ago. Having so few gaps that have had to be plugged by amendments over the years suggests that the Constitution’s interstices are pretty darn small.

The clause of which I speak today reinforces that notion, as it exemplifies the Founders’ attention to detail in their drafting. It reads, “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.”

This was originally numbered as Clause 4 of Article II, Section I, but, well, an excessively large interstitial gap showed up in the original Clause 3, which dealt with how votes were counted in the Electoral College. The election of 1796 revealed that under the original Clause 3 vote-counting scheme, the nation could wind up with a president from one party and a vice-president from the opposition party. And the election of 1800 further exposed the flaw, as it became evident then that a straight party-line vote by the electors would result in just that scenario: a president and vice-president from different parties. That was scarcely a recipe for smooth government.

So the 12^th amendment was enacted to solve that problem; the original Clause 3 was thus superseded, and voilá, the original Clause 4 was renumbered to Clause 3 with its original text unchanged.

Of course, this short Clause does not stand alone in the great legal scheme of things; Congress had to act to set the date, and it did; 3 U.S.C. § 7 reads, “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.” So despite the great hullabaloo about the popular elections in November, the “real” election takes place in December, when the Electoral College votes.

By deferring to Congress to set the exact date for the electors to vote, the Framers built flexibility into the Constitutional system so that minor procedural adjustments could be made without invoking the cumbersome amendment process. That approach reflects great wisdom, when you consider that these men who drafted with quill pens created a document that functions effectively in an age of near-instantaneous communication. So even a humble, small procedural clause in the end demonstrates just how finely crafted this document is…!

Gary McCaleb serves as senior counsel for the Alliance Defense Fund at its Team Resource Center in Scottsdale, Arizona, where he leads a litigation team comprised of attorneys and support staff at offices in District of Colombia, Arizona, Kansas, California, Louisiana, Georgia, and Tennessee. He has litigated religious liberty and free speech cases in federal and state trial and appellate courts throughout the United States. McCaleb graduated with honors from Regent University School of Law in 1997 and is admitted to the Arizona state bar.

April 19, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article II, Section 1, Clause 3 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 1, Clause 3, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 3, Constitutional Amendment XII, Constitutional Amendment XII, Federalist No. 57, Federalist No. 64, Federalist No. 68, Joerg W. Knipprath

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article II, Section 1, Clause 3

3: The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not lie 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.

When determining the mode for selecting the President, the Framers were faced with a conundrum. The President was to be a leader who could act with energy and dispatch. Yet he was to maintain his constitutional pedigree as a republican, and he must exercise wisdom and judgment. It was hoped that the President would be, as Henry Lee said in his eulogy of George Washington, “first in war, first in peace, and first in the hearts of his countrymen.” But the president was not to gain that position as an American Caesar, a man whose immense talents and genius also proved to be fatal to that ancient republic that Revolutionary War-era Americans so admired.

Perhaps even worse, because so much more likely in the ordinary case, would be the man who, lacking the genius of a Caesar, would gain office through “talents for low intrigue, and the little arts of popularity,” as Hamilton sneered in Federalist 68. To Americans of the time, “popular” suggested a certain cravenness and lack of principle. Such a person would do what advanced his political standing, rather than what was best for the country. As Plato long ago warned in his description of the demagogue (Greek for “leader of the people”), this was a particular flaw of democracy. Such a man was most likely to emerge in a system that placed no electoral barrier between the mass of the people and him.

Hamilton’s response during the Philadelphia Convention was a complex multi-layered proposal of election by electors selected by regional electors themselves elected by some class of voters. Such a convoluted system resembles an electoral Rube Goldberg-contraption. However, the historically well-read Framers had the experience of other republics from which to draw, and Hamilton’s system was a simplified (if that can be imagined) variant of the election of the Doge of Venice. A system of electors avoids the democratic pitfalls of election of unqualified flatterers by a people corrupted by promises of favors or bedazzled by a façade of handsome features and soaring, but empty, rhetoric. But, without more, election by a council of the few does not avoid the oligarchic pitfalls and factionalism inherent in any cohesive and organized group, characteristics Madison warned against in The Federalist. Hamilton’s proposal would increase the number of participants and disperse their decisions. This made it more difficult for a candidate to gain office by corruption and intrigue through a small and cohesive faction.

The Framers did not go along with the particulars of Hamilton’s proposal. But, after making the easy call against direct popular election and rejecting, as well, election by Congress or by the state legislatures, they settled on a system similar to the one proposed by Hamilton. In the process, they resolved several practical problems. Every efficient electoral system has to provide for a means of nominating and then electing candidates. Moreover, civil disturbances over what is often a politically heated process must be avoided. There must be no taint of corruption. The candidate elected must be qualified.

As to the first, the Electoral College would, in many cases, nominate multiple candidates. Electors would be chosen as the legislatures of the states would direct. Though the practice of popular voting for electors spread, not until South Carolina seceded from the Union in 1860 did appointment by the legislatures end everywhere. Once selected, the electors’ strong loyalties to their respective states likely would cause the electors to select a “favorite son” candidate. To prevent a multiplicity of candidates based on state residency, electors had to cast one of the two votes allotted to each for someone from another state. It was expected that several regional candidates would emerge under that process. There likely would be no single majority electoral vote recipient, at least not after George Washington. In effect, the Electoral College would nominate the candidates. The actual election of the President then would devolve to the House of Representatives, fostering the blending and overlapping of powers that Madison extolled in Federalist 51. The winner of the House vote would be President, the runner-up would be Vice-President.

That last step corresponded to the Framers’ experience with the election of the British prime minister and cabinet, and with the practice of several states. However, consistent with the state-oriented structure of American federalism, such election in the House had to come through a majority of state delegations, not individual Congressmen. Though modified slightly by the Twelfth Amendment as a result of the deadlock of 1800, this process is still in place.

As John Jay writes in Federalist 64, the Constitution’s system would likely select those most qualified to be President. Augmented by the Constitution’s age requirement for President, the electors are not “liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”

Having the voters select a group of electors, rather than the President directly, would also calm the political waters. By making that election something other than an immediate vote about particular candidates, the process would encourage reflection and deliberation by voters about the capacity for reasoned judgment of the electors chosen. The smaller number of wise electors, in turn, would exercise that judgment free from popular passion.

Hamilton and others assured Americans that corruption and the influence of faction would be avoided by the temporary and limited duty of the electors, the disqualification of federal office holders to serve, the large number of electors, and the fact that they would meet in separate states at the same time rather than in one grand national body. Presumably, those protections fall away when the House elects the President. But Congressmen have to worry about re-election and, thus, want to avoid corrupt bargains that are odious to the voters.

The system never quite worked as intended. After Washington’s election, the nomination of Presidents was informally taken over by factions in Congress, in a process dubbed the Congressional caucus system. That system immediately caused the untenable situation of a President (Adams) and a Vice-President (Jefferson) from opposing factions. The debacle of the House-controlled election of 1800 brought about by the intra-factional rivalry of Jefferson and Burr placed the young American experiment in self-government in mortal danger. That, in turn, brought limited reform through the 12^th Amendment.

Though the constitutional shell remains, much of the system operates differently than the Framers thought. The reason is the evolution of the modern programmatic party, that bane of good republicans, which has replaced state loyalties with party loyalties. The Framers thought they had dealt adequately with the influence of factions (political groups that focus on a particular issue or coalesce around a charismatic leader) in their finely-tuned system. As modern party government was just emerging in Britain and—in contrast to temporary and shifting political factions—unknown in the states, the Framers designed the election process unprepared for such parties.

Today, the nominating function is performed by political parties, while election is, in practice, by the voters. Elections by the House are still possible, if there is a strong regional third-party candidate. But the dominance of the two parties (which are, in part, coalitions of factions) suppresses competition, and the last time there was a reasonable possibility of electoral deadlock was in 1968, when Alabama Governor George C. Wallace took 46 electoral votes. Mere independent national candidacies, such as that of Ross Perot in 1992, have roughly similar levels of support in all states and are unlikely to siphon electoral votes and block the usual process.

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 18, 2011/4 Comments/by Janine Turner and Cathy Gillespie

Article II, Section 1, Clause 2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 1, Clause 2, Tara Ross 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 2, Constitutional Amendment XXIII, Constitutional Amendment XXIII, Federalist No. 68, Tara Ross

Guest Essayist: Tara Ross, Author, Enlightened Democracy: The Case for the Electoral College

Article II, Section 1, Clause 2

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.

Each State shall appoint . . . a Number of Electors . . . .

On November 4, 2008, Americans went to the polls and expressed their preferences among Barack Obama, John McCain, or other candidates. Many Americans probably thought that they were actually casting ballots for one of these men: We have gotten used to thinking of presidential elections as ones in which we vote directly for the candidates. Yet that is not really how American elections work. In reality, the only people elected on Election Day are representatives, called electors, whose sole duty is to represent their states in a subsequent election among states. This latter election—the real presidential election—determines the identity of the President of the United States.

Article II, Section 1, Clause 2 provides the boundaries for the appointment of these electors.

The Constitution provides that each state is to decide, for itself, how its electors will be chosen. During the first presidential election, states relied upon a wide range of methods. Several state legislatures appointed electors directly, on behalf of their citizens. No presidential election, as we think of it, was ever held in those states. Other states relied upon popular votes, but in different ways. For instance, Maryland directed that certain numbers of electors were to be elected from designated parts of the state. Virginia created 12 districts specifically for the election of electors; these districts were separate from the ten districts created for the election of Congressmen.

Today, every state relies upon a popular election among its own citizens. Most states then allocate their electors in a winner-take-all fashion based upon the outcome of these elections. So, for instance, when a majority of Californians expressed their preference for Obama in 2008, these votes were translated into votes for a slate of 55 Democratic electors. If McCain had won the election, an alternate slate of 55 Republican electors, committed to McCain, would have been appointed to represent California instead.

The state’s authority to choose its own method for appointing electors is not in doubt. However, a few other issues remain unresolved:

First, may Congress step in if there is controversy regarding which of two slates of electors rightfully represents a state? Congress has taken such action in the past, and it claimed authority to act in the Electoral Count Act of 1887 and subsequent measures. However, some scholars argue that such federal laws impinge on the states’ authority, as outlined in Article II, Section 1, Clause 2.

Second, is a state’s discretion truly unlimited? An anti-Electoral College movement (National Popular Vote) hopes so. This group asks states to change their manner of elector allocation: Instead of allocating electors to the winner of state popular votes, participating states would allocate their electors to the winner of the national popular vote. These states would sign an interstate compact (a contract) to this effect. If enough states sign, the Electoral College would be effectively eliminated. NPV supporters reject the claim that their compact is an end run around the Constitution, but the question will ultimately be tested in court: NPV could be enacted with as few as 11 states, whereas 38 states are required for a constitutional amendment. Such a process seems questionable, to say the least. Justice Thomas once observed, “States may establish qualifications for their delegates to the electoral college, as long as those qualifications pass muster under other constitutional provisions.” NPV may not satisfy this test.

In such Manner as the Legislature thereof may direct. . . .

Another open legal question exists regarding the meaning of the word “Legislature” in Article II, Section 1, Clause 2. Does this use of “Legislature” refer specifically to the lawmaking body or does it refer to a state’s entire lawmaking process? In the latter case, the legislature and governor must act together to determine the manner for appointing electors. Also, voter referendums would be able to trump the legislature in some circumstances. The Supreme Court has not directly addressed the question, but it has come down on both sides of the issue in other contexts.

The question may seem purely academic, but it has particular importance today because of NPV. In three states, NPV’s legislation has been approved by the legislature, only to be vetoed by the state’s governor. Will these vetoes stand or will they be deemed irrelevant?

Equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . .

States are allocated one elector for each of their representatives in Congress—both Senators and Congressmen. Each state therefore automatically receives a minimum of three votes, as it is entitled to at least two Senators and one Congressman in the Congress, regardless of population. Puerto Rico and the Island Areas are not given electors, as they are not states. The District of Columbia did not initially receive votes because it is not a state; however, adoption of the 23rd Amendment in 1961 provided it with at least three electoral votes.

This method of allocation is consistent with the rest of the Constitution and echoes the states’ representation in Congress. A portion of a state’s congressional representation is based on population (the House of Representatives; one person, one vote), and a portion is based on a one state, one vote philosophy (the Senate).

But no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Some scholars believe that electors were meant to independently deliberate: The Founders wanted a body of wise men, entrusted with the power to select the President at a time when communication was slow and unreliable. Other scholars maintain that the role of elector was created only because the delegates to the Constitutional Convention left it to states to determine how their electors were to be chosen. Either way, creation of an independent electoral body was thought to provide special benefits in the presidential selection process.

In Federalist No. 68, Alexander Hamilton wrote that the election process should minimize the opportunity for “cabal, intrigue, and corruption” in the selection of the President. Article II, he believed, accomplished this. Electors could not be bribed or corrupted because their identities would not be known in advance. Presidents would not be indebted to (potentially biased) legislators for their elections, thus reinforcing the separation among the branches of government. Separating the meetings of the electors (one in each state) would make these individuals less susceptible to a mob mentality. Finally, the selection of electors was tied to the people of a state, reminding the President that he owed his office and his duty to the people themselves.

Some of Hamilton’s logic has perhaps become less applicable, given the advent of mass communication and decreasing expectations that electors are to independently deliberate. But the state-by-state presidential election system created by Article II continues to provide many benefits for a country as large and diverse as America. The White House can only be won by a candidate who wins simultaneous victories across many states; thus, candidates must appeal to a broad range of voters in order to succeed. Successful candidates bring a diverse citizenry together, building national coalitions that span regional and state lines. Such a system is as healthy now as it was in 1787.

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College

April 15, 2011/10 Comments/by Janine Turner and Cathy Gillespie

Article II, Section 1, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article II, Section 1, Clause 1, Lawrence J. Spiwak 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 1, Federalist No. 69, Lawrence J. Spiwak

Guest Essayist: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies

Article II, Section 1, Clause 1

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

Under Article II Section 1, Clause 1 of the Constitution, 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….” By establishing the then-radical concept of an elected Chief Executive with a fixed term, the Founding Fathers made a bold statement to the world that the newly-formed United States of America was rejecting outright any notion that it would tolerate a new American monarchy (and, with it, presumably an accompanying peerage of Lords made up of selected landed gentry).

Without question, time has proved that the concept of an elected chief executive with a fixed term has served the American people well. Yet, when this idea was first proposed, the citizens of a post-Revolutionary War America were skeptical. As a result, Alexander Hamilton was forced in Federalist No. 69 to sell the Founder’s vision to a wary public.

Hamilton began his essay by reiterating the point that one simply could not compare the position of President to the King of England, for if one did, “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.” Indeed, explained Hamilton, while the President is “re-eligible [only] as often as the people of the United States shall think him worthy of their confidence,” the King of England was a “hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever.” (Emphasis in original.) As Hamilton so elegantly summarized the issue: “The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.”

But Hamilton did not stop there.

For example, Hamilton explained that while a President could be impeached, “there is no constitutional tribunal to which [the King] he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.”

Similarly, Hamilton pointed out that while a President can veto a piece of legislation, the Congress can nonetheless override this veto by two-thirds votes in both houses. In contrast, the King of England had “an absolute negative upon the acts of the two houses of Parliament.”

Moreover, while a President may “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”, Hamilton argued that there were no such constraints on the King. (Emphasis in original.) To the contrary, Hamilton forcefully argued that the King of England was

“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….”

And what about issues of foreign policy? Again, in Hamilton’s view, the powers of President and King stood in stark contrast.

Under the Constitution, while the President is the “commander in chief”, only Congress may formally declare war. On the other hand, Hamilton pointed out that the power of the British King went beyond commander-in chief and extended to “the declaring of war and to the raising and regulating of fleets and armies….” (Emphasis in original.)

Moreover, while the President has the power to make treaties only with the advice and consent of the Senate, Hamilton demonstrated that the King was “the sole and absolute representative of the nation in all foreign transactions” and could “of his own accord make treaties of peace, commerce, alliance, and of every other description.”

So, viewing Hamilton’s arguments with the benefit of over two hundred years of history, what can we learn about Article II Section 1, Clause 1 of the Constitution? In my view, the lesson is simple and obvious: no matter how much we may disagree with the policies of a particular President, there are (fortunately) significant Constitutional checks and balances to curtail potential abuses of his authority. Indeed, to paraphrase Hamilton, so long as the power of the government remains “in the hands of the elective and periodical servants of the people”, the United States is no danger of being characterized as “an aristocracy, a monarchy, and a despotism.”

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, its Adjunct Follows, or any if its individual Editorial Advisory Board Members.

April 14, 2011/8 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 10, Clause 3 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 10, Clause 3, Julia Shaw 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 09, Article I Section 10 Clause 3, Julia Shaw, The Articles of Confederation

Guest Essayist: Julia Shaw, Research Associate and Program Manager at the B. Kenneth Simon Center for American Studies, The Heritage Foundation

Article 1, Section 10, Clause 3

3: 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.

The Founders understood that the federal government can threaten individual liberty, but so can the state governments. The Constitution recognizes threats from both actors and, therefore, contains specific limitations on both. Article 1, Section 9 limits the federal government; Article 1, Section 10 limits state governments.

Section 10 consists of absolute prohibitions on the states (e.g., prohibitions relating to military and monetary powers) and qualified prohibitions on the states (i.e., prohibitions that Congress may suspend).

Section 10, Clause 3 contains qualified prohibitions on a variety of activities. The prohibition on states charging duties of tonnage prevents state-specific protectionism and protects Congress’s commerce power. Because standing armies were a grave threat to the new republic, the constitution prohibits them at the state level. States may maintain militias, but not standing armies. But, the most significant portion of the clause concerns the ability of states to enter into agreements with foreign nations or other states. As Michael S. Greve notes in Compacts, Cartels and Congressional Consent, “For a federal republic, and especially for a nascent federal republic, the prospect of separate, unsupervised agreements among its member-states and between a member-state and a foreign nation must constitute a cause for alarm.”[1]

The Articles of Confederation forbade the states from entering into an agreement with foreign powers. Additionally, any “treaty, confederation, or alliance whatever” among the states required congressional consent, and Congress would settle any disputes arising between the states. But the Articles of Confederation proved ineffective. The Constitution supplied a remedy. The Constitution created a new apparatus for the federal government to engage foreign nations: the president would be the chief actor in foreign affairs. He would negotiate treaties and, in turn, the Senate had to ratify treaties before they went into effect. Individual states could not enter into agreements or treaties with foreign nations. But, in the event of foreign invasion, an individual state could respond.

Agreements between the states pose threats to federal powers, to states not party to the agreement, and even to individual rights. By requiring such agreements to have the consent of Congress, other states would be informed of the agreement and able to protect their interests and the rights of their citizens. In many ways, congressional approval on state compacts was a compromise. James Madison wanted to give the federal government a much broader power over the state governments: specifically, he advocated a congressional negative on state laws. Delegates at the Convention compacts clause rejected Madison’s proposal—three times—as overly nationalist and unnecessarily broad. The Convention instead opted for federal supremacy over certain categories of activity, blanket prohibition of some activity, and congressional approval for any agreement between the states. Together these prohibitions mollified Madison’s concerns and protected against state governments’ encroachments on liberty.

Though the Compacts Clause makes clear that forming compacts is prohibited without the consent of Congress, it is not clear what form that consent must take. Does it require a law be passed and signed by the president? Or can Congress accomplish it without presentment? Nor does the clause specify whether Congress must consent prior to the formation of the compact. There is also debate about the scope of these compacts. Compacts prior to 1921 primarily concerned boundary disputes. Compacts in the later 20th century include complex regulatory schemes that may present separate constitutional problems. These ambiguities will likely be tested as states become more creative with the scope and substance of their agreements.

Julia Shaw is the Research Associate and Program Manager at the B. Kenneth Simon Center for American Studies, The Heritage Foundation.

[1] Michael S. Greve, Compacts, Cartels, and Congressional Consent, 68 M.L.Rev. 285, 296 (2003).

April 13, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 10, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 10, Clause 1, Joerg W. Knipprath 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 09, Article I Section 10 Clause 1, Article I Section 10 Clause 3, Joerg W. Knipprath, The Articles of Confederation

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article 1, Section 10, Clause 1

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 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.

What if a state, laboring under a significant budget deficit, decided to repudiate its general obligation bonds? What if that state, further, enacted an increase in the income tax, retroactive to the beginning of the year? Would Article I, Section 10, clause 1 permit such actions?

The first part of that clause, along with clause 3 of the section, restricts the states to only a very limited capacity at international law, and states may exercise even that residue only with permission of Congress. The Articles of Confederation restricted these powers already, as the exercise of them by the states would undermine national sovereignty. The new Constitution simply tightened them and made them more concise, in recognition of the fact that these restrictions were an integral part of the establishment of a stronger Union.

The second part of that clause, dealing with money, bills of credit, and gold and silver as legal tender, addressed the pestilence of paper money issued by the states. Many of the Framers saw this as a particular problem that contributed to the insecurity of property in various states and the economic turbulence that, in turn, produced political turbulence and threatened the republican experiment. It had been the practice even of colonial assemblies to fund the costs of military campaigns by quasi-confiscatory practices of issuing bills of credit (paper money on the credit of the colony) to merchants and suppliers of war materiel. After the war, those bills of credit rapidly depreciated, as the colonists declined to vote the taxes necessary to pay them. Once the bills reached a sufficiently low level, they could be taxed out of existence relatively painlessly.

It was hardly surprising, then, that the states (and the Continental Congress) would resort to that same hoary practice on declaring independence. By war’s end, Congress had issued $226 million in bills of credit, for which it had received $45 million in goods and services, as Americans increasingly took into account this species of public finance fraud. However, the paper currency itself had depreciated essentially to nothing, a massive (and conscious) expropriation of private property by inflation, engineered by a body that lacked the formal constitutional powers to do so. “Not worth a Continental” was not a metaphor. Benjamin Franklin defended this confiscatory practice as an equitable form of taxation as these bills were held more by the upper-middle and upper segments of society than by the poor. John Adams dismissed critics of the devaluation with a curt, “The public has its rights as well as individuals.” In the end, Congress never redeemed the paper currency.

If the Congress was bad, in some ways the states were worse. Not only were there problems with the emission of bills of credit (though that was less significant than for Congress), but with other, broader confiscatory and debt cancellation laws. To the extent that such laws injured the interests of Loyalists and British creditors, they violated the peace treaty with Great Britain and threatened to reignite the war. To the extent they hit their own citizens, the states were flirting with class warfare. At best, even in the absence of a specter of violence, state politics circled around the vortex of the depreciated bills, as holders, speculators, and debtors (who were not always different persons) jockeyed for political and economic advantage. This contributed to the instability of state politics and prevented establishing a basis for long-term social peace and material prosperity.

Historians, including conservatives such as Forrest McDonald, indict this period after independence for making Americans less secure in their property rights than they had been under King George. To an increasing number of Americans, especially younger figures such as Hamilton and Madison who were not as tied to the “revolutionary spirit,” the reason was that “governments were now committing unprecedented excesses, even though–or precisely because–governments now derived their powers from compacts amongst the people.” The period was a vivid illustration that democratic self-rule does not, without more, set a society on the path to the security of property and long-term well-being. Even more alarming was the fact that those same state governments were acting under constitutions that nominally protected individuals’ liberty and property from just such majoritarian muggings.

It is no wonder then, that many of those who gathered at the convention in Philadelphia, viewed the levelling tendencies of such fiscal and redistributionist laws with consternation and as evidence of the irresponsibility of popular majorities. There was no opposition to the portions of Article I, Section 10, that negated the states’ abilities to coin money, issue paper currency, or make anything but gold and silver legal tender. Some delegates wanted that prohibition extended to Congress, but the majority demurred. The need for paper money during emergencies, combined with the Madisonian faith that a more effective balance between debtor and creditor interests would produce better political checks against excesses at the national level than within the states, gave the majority pause about tying the hands of Congress.

In hindsight, both sides can claim vindication. Certainly, the issuance of fiat money during the Civil War helped the Union’s war effort. On the other hand, the flood of trillions of dollars sloshing around today during peacetime can easily become a tsunami that destroys the economic well-being of large numbers of Americans. And, contrary to Franklin, devaluation and inflation typically hit the lower and middle classes more than it does the wealthy. Inflation is a brutally regressive tax.

One tool of the Framers was to ban retrospective laws. The first was the prohibition on ex post facto laws, one that also applied to the national government under Article I, Section 9. Apparently many of the Convention (including Madison) thought that ex post facto laws covered all retrospective laws. This produced a moment that demonstrates that the Framers were ordinary humans, finding their way through the constitutional fog, not infallible divine creators. The day after the vote, John Dickinson sheepishly announced that he had looked up “ex post facto” in Blackstone and found (correctly) that this only prohibited retroactive criminal laws.

Similarly, bills of attainder (legislative decrees of punishment of individuals used expansively during the English Civil War, but not unknown even in the newly-independent states) were prohibited for the states and the national government, primarily because of their retroactive application to acts already committed. Bills of attainder and ex post facto laws were viewed as such outrageous infringements of liberty that they were denounced as contrary to the protections of the social contract and the very nature of a republican government of free men.

But that still left the issue of retrospective civil laws. The contract clause of Article I apparently was the vehicle to deal with the vexatious laws that, in tandem with the paper currency policies, cancelled debts or otherwise interfered with existing contracts. Although the origin of the clause is obscure, it is similar to one found in the Northwest Ordinance of 1787, passed by the Confederation Congress. The author at the Convention probably was Hamilton, who, after his personal experience with Pennsylvania’s capricious revocation of the charter of the Bank of North America, also saw the potential of the clause to protect banks and other corporations from state harassment.

The contracts clause was an early vehicle for the Supreme Court to promote the rule of law and the stability of rights in property. Chief Justice Marshall, in particular, read the clause broadly to protect individual rights in contracts. Indeed, his interpretation went so far as to prevent the states from interfering with the obligations of contracts even prospectively, a view that was probably beyond that envisioned by the Framers and which led to Marshall’s only dissent in a constitutional case in 34 years on the Court.

Much has changed since then. Today, the Supreme Court has reinterpreted the categorical language of the clause to prohibit only laws “unreasonably” impairing the obligation of contracts. This has effectively eviscerated the clause’s protections against most state laws that interfere with purely private contractual relations, even those that are retrospective. States, and the federal government (to which the contracts clause does not apply directly), are relatively free to force creditors to revise terms of existing debt instruments, such as mortgages) when debtor interests gain enough political traction.

Neither of our hypothetical state laws would be unconstitutional under the ex post facto clause, as they do not deal with crimes. There being no “contract,” the only limitation on the retroactive tax increase would be vague notions of “notice” to the taxpayers under the due process clause of the 14^th Amendment. The repudiation of state bonds would be a closer case, and states well may run into difficulties under the contracts clause if they were to try to repudiate their bonds (or to curtail vested public employee pensions).

April 10, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Article I, Section 09, Clause 8 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 09, Clause 8, Kyle Scott, Ph.D. 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08, Article I Section 09 Clause 8, Kyle Scott PhD

Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

Article 1, Section 9, Clause 8

8: 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.

Following Section 8, in which the powers of Congress are enumerated, Section 9 enumerates the restrictions that the Constitution places on Congress. The final clause of Section 9 states that Congress cannot grant titles of nobility nor anyone holding any state or federal office can accept a title from a foreign state unless first approved by Congress.

The first part of Clause 8 is perhaps the most cited and directly applicable to contemporary concerns. Think of all the czars who have been appointed recently by the President. It can be argued that being a czar is not noble, nor is the title one of British nobility, but that would construe the term and the intent far too narrowly. The Founders did not want an aristocratic ruling class who were insulated from the public. That seems to be the very definition of the recently appointed czars who usually have close personal ties with the appointing President or one of his officials. Furthermore, theses czars are insulated from the influence of the public and congressional oversight.

This is the obvious interpretation of the Clause. What usually goes unnoticed is the second part.

The first thing that strikes me when reading this Clause is the phrase “no Person holding any Office of Profit or Trust under them,” specifically the use of the term “them”. It is uncommon for most of us to use the pronoun “them” instead of “it” when referring to the United States. Reading this sentence in conjunction with the Preamble, we can better understand what the Founders meant when they wrote, “We the People, of the United States of America.” If their view held consistent between the Preamble and Article I, which it surely did, then We the People would seem to mean the people of the states rather than a single national people. This is more than just a pedantic discussion of constitutional interpretation however, but instead one more instance of how a close reading of the Constitution can provide solutions to contemporary political debates.

Here is how.

The national government overshadows our states which is partially due to, or has at least led to, our viewing the United States as a singular rather than a plural. In viewing the United States as a plural we can understand it as a compact between the states, and their citizens, rather than between the people of a national, single United States. This understanding is quite consistent with the view expressed by Madison and Jefferson in the Virginia and Kentucky Resolutions respectively. If we were to adopt this reading of the American Constitutional tradition, and its implications as articulated by Madison and Jefferson, we would have a more decentralized regime, and the national government would be more limited as a result. If national action required the consent of the states, and the people of the states as citizens of their respective states rather than national citizens, there would be a more significant check on the national government’s ability to push through controversial legislation or for the growing bureaucracy to implement plans inconsistent with the will of the people. If we had maintained this view of the Constitution, chances are the recent health care reform would have been blocked, or at least restricted to only those states that supported the reform. It would also be unlikely that federal agencies like the EPA would be able to force states to abide by their administrative rules without the consent of the states.

The common thread that runs through the first and second parts of Clause 8 is an aspiration towards limited government, which then makes this Clause thematically consistent with all of Section 9 as it is here that the limitations on Congress are enumerated.

It is no surprise to anyone that the Founders wanted limited government, but it is important to understand why and how they went about trying to achieve it. And while it is easy to cite specific sections and clauses to this effect, it is more important to explain what those citations mean. The Constitution demands a reading that searches for a political theory for it is only then that we can formulate a coherent argument about what the Founders would have to say about contemporary matters.

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

April 8, 2011/4 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 09, Clause 7 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 09, Clause 7, Dan Morenoff 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 09 Clause 7, Dan Morenoff, Federalist No. 58

Guest Essayist: Dan Morenoff, Attorney

Article 1, Section 9, Clause 7

7: 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.

This clause of the Constitution seems utterly unremarkable today. It reads like an accounting textbook, never hinting at the long history of struggle summed up in the first sixteen (16) words. Nor do the remaining twenty-two (22) words indicate, on their face, the antiquity of the ethical judgment they imply. Yet, if you scratch the surface, the Appropriations Clause holds wonders.

For centuries before the Constitution’s ratification, English-speaking legislatures had contended with the executive for control over the power to spend. Beginning with Runnymeade and the Magna Carta, what would become Parliament had striven to limit the King’s control over money raised and spent. While religious and commercial differences played a role in the conflict, the English Civil War began as a battle over Parliament’s exercise of independent judgment in refusing to support a King’s call for greater taxes. By 1689 at the end of the Glorious Revolution, Parliament had written into law through the English Bill of Rights legislative control over the raising of money, asserting “[t]hat levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament … in other manner than the same is or shall be granted, is illegal.” Parliamentary control over how Kings spent the funds Parliament helped raise began with the insertion of instructional language into a grant of funding in the 14^th Century. While Parliament’s control over spending remained incomplete in the 1780s, English-speaking legislatures had been trying to control how funds they raised were spent for 400 years before the founding.

On the West side of the Atlantic, these efforts were accelerated by the distaste the Colonials often had for the Crown’s appointed Colonial Governors. So firmly had Colonial legislatures established control over what funds were taxed, borrowed, and spent by Governors that Madison could define the “power of the purse” in the Federalist Papers as the power “to propose the supplies requisite for the support of government” and safely assume that his readers would know exactly what he meant. Indeed, in Federalist 58, Madison went further, explaining the power, not entirely accurately in terms of British practice, but consistent with the Colonial experience of annual, line-item appropriations, as:

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 activities 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 redress of every grievance, and for carrying into effect every just and salutary measure.

The Appropriations Clause wrote this Colonial practice into stone. In America, no money would leave the treasury without the passage of an appropriations bill passed by Congress. The intervening centuries under the Constitution have seen further conflict over the contours of the Appropriations Clause – for example, battles over Presidential discretion to “impound” appropriated funds (meaning, to refuse to spend them). But the bedrock principle of the Appropriations Clause has almost never been called into question.

Ancient as the story hidden within the first half of the Appropriations Clause is, the second half of the clause, that requiring “a regular Statement and Account of the Receipts and Expenditures[,]” has it beat by thousands of years.

The core, ethical requirement of the clause is that any one entrusted by law to spend the people’s money has a duty to show that he has done so as a faithful steward. That requirement has its roots in the book of Exodus. Moses himself came back after the construction of the Ark of the Covenant with a report on how the funds raised were actually spent.

The Founders expected their Presidents to be no more ethical people then Moses had been. Accordingly, they wrote into the Constitution a requirement of the same kind of reporting Moses had provided.

As a result, the clause is one of the clearest examples of biblical influence on the Constitution.

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.

April 6, 2011/4 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 09, Clause 4-6 of the United States Constitution

Allison Hayward, Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 09, Clause 4-6 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Article I Section 09 Clause 4-6, Constitutional Amendment XVI

Guest Essayist: Allison Hayward, Vice President of Policy at the Center for Competitive Politics

Article 1, Section 9, Clause 4-6

4: No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.7

5: No Tax or Duty shall be laid on Articles exported from any State.

6: 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.

Benjamin Franklin is credited with observing that nothing is certain except death and taxes. In clauses 4-6 of Article I, the Founders were attempting to assuage concerns Americans had over the ability of the national government to levy taxes. The power to raise revenue was essential – the national government would be moribund without finances. But the national government could come under the sway of parochial interests, and the taxing authority could unfairly burden certain regions.

With clause 4 “Congress might not have the power of imposing unequal burdens; that it might not be in their power to gratify one part of the Union by oppressing another” noted Hugh Williamson, a North Carolina delegate to the constitutional convention. Delegates from Southern colonies were especially sensitive to this issue.

Thus in Clause 4, the Constitution requires that direct taxes only be assessed in proportion to population, as determined by the census that apportions members of Congress. (Recall that the census apportioned representation according to the number of free persons and three/fifths of the slaves). A capitation tax, or “poll” tax, was nothing more than a tax on individuals. Poll taxes were most commonly assessed at the local level, for goods like roads and schools. Here, the Founders believed that commerce would ordinarily provide tax revenue, and that a direct tax would seldom be used at the national level. But the Founders also knew that urgent situations, like war, might exceed the nation’s capacity to raise revenue through tariffs and excise taxes.

As an aside, the poll tax roll was also a means to evaluate who lived in a jurisdiction, and so were also used to identify eligible voters. This is the context most people today think of when they hear the phrase “poll taxes” so the mistake is often made of thinking that “poll” means the place where votes are cast. The Founders would have ben using “poll” on the older sense, that is, a tax on individuals.

Southern delegates were also sensitive to the potential harm arising from Congress’s taxation of exports. in the debate over Clause 5, advocates argued that, were Congress given this power, it could unfairly burden the exports of some states and not others. Different states had vastly different export profiles – think of how an export tax on cotton would have applied in practice. Yet the solution incorporated in the Constitution remained controversial, given the economic advantages Northerners believed that the South derived from slavery. Thus, even as anodyne as this clause may appear today, it passed by only a vote of 7-4, with New Hampshire, Pennsylvania and Delaware voting no, and Massachusetts abstaining.

In Clause 6 the constitution yet again limits congressional power to favor one region over another. Under clause 6, Congress would lack the power to regulate a disfavored state’s maritime commerce out of existence. This issue was of special concern in Maryland, because Maryland-bound shipping would pass ports in Virginia. A few delegates believed this clause would impose inconveniences in some situations, but relented in favor of those states with strong interests in these limits.

The revenue profile of our nation today is quite different from what the Constitutional Convention anticipated. Indirect taxes, like excise taxes and tariffs, account today for only about 3% of the federal government’s revenue, while about half comes from individual income taxes – a direct tax that could only come into existence by amendment to the Constitution, in Amendment XVI, ratified in 1913. That change came quickly – by 1930, 60% of the federal government’s receipts were from the income tax.

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.

April 6, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 09, Clause 2-3 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 09, Clause 2-3, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I Section 09 Clause 2-3, Constitutional Amendment XIV, Constitutional Amendment XIV, Federalist No. 84, Joerg W. Knipprath

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article 1, Section 9, Clause 2 and 3

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. 3: No Bill of Attainder or ex post facto Law shall be passed.

The Great Writ. The writ of habeas corpus, protected in Article I, Section 9, clause 2, is often regarded as the cornerstone of the rule of law in Anglo-American jurisprudence. Alexander Hamilton, writing in Federalist 84, approvingly quotes Blackstone that habeas corpus is the “ bulwark of the British constitution,” in that it prevents the “dangerous engine of arbitrary government” that comes from “confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten.”

Some historians trace the writ back to Magna Charta, although more definitive evidence shows a gradual emergence under the common law, culminating in the Habeas Corpus Act of 1679, during the reign of Charles II. As Hamilton’s comment shows, the Framers were well aware of the writ. Note that the Constitution does not “create” the writ; rather, Article I, Section 9, assumes the existence of the writ, but provides for its limited suspension.

Congress early confirmed the federal courts’ jurisdiction to issue the writ in the Judiciary Act of 1789, though the scope of the jurisdiction has changed over time. It is even plausible, though not without doubt in light of 19^th century precedent, that the power to issue writs of habeas corpus is so tied to the essential role of the federal courts that they could issue writs of habeas corpus even if Congress had not affirmatively recognized that power.

The writ is commonly said to be an instrument only to test the constitutionality of the detention, not to adjudicate the guilt or innocence of a detainee. In other words, it is not the same as a right to appeal a conviction, but a “collateral attack” on the right of the government to detain the prisoner at all. In some fashion, though, habeas corpus is broader than an appeal. Rights of appeal are usually limited in time. Petitions for habeas corpus traditionally were not so limited and could be brought repeatedly, years after trial.

There are two areas where the use of habeas corpus has become controversial in the last few decades. One is the use of federal courts to challenge state criminal proceedings, especially in death penalty cases. The other is the applicability of the writ to detainees in military custody.

As to state criminal proceedings, the problem began with the Supreme Court’s “incorporation” into the 14^th Amendment of criminal procedure protections in the Bill of Rights. This process, principally during the Warren Court, extended the federal courts’ supervisory powers over state court proceedings. Justice Frankfurter as early as 1953 warned of the writ’s “possibilities for evil as well as good,” in light of the roughly 400 to 500 habeas petitions brought in federal court by persons in state custody. By the end of the Warren Court, that number increased to 12,000 per year. It continued to climb until the Rehnquist Court in the 1990s began to stem the deluge.

Today, habeas petitions are still a favorite pastime of “jailhouse lawyers,” as well as of attorneys who represent inmates with various complaints, from prison overcrowding or medical care to more individualized concerns about ineffective assistance of counsel in capital cases. But federal laws and Supreme Court decisions now require petitioners to meet stiffer tests for such collateral review. In part these restrictions have been justified by the perceived greater due process protections in state criminal proceedings compared to 50 years ago. In part it is the conscious institutional desire of the Rehnquist and Roberts Court majorities to shift more business out of the federal courts into the state courts. It is the latter, after all, who are the courts of “general jurisdiction” in our federal system. In part it is simply the federal judges’ impatience with the sheer volume of repeated and frivolous petitions. Even before the floodgates opened, only a very small percentage (6%) of petitions were found to have merit. As so frequently happens, the increase in quantity over the years led to a further decrease in quality.

Regarding jurisdiction over people detained by the military, the writ has a checkered past. Early in the Civil War, President Lincoln suspended the writ in a portion of Maryland (a de facto imposition of martial law). In 1861, Chief Justice Taney issued the writ to the military jailer of a Maryland secessionist arrested for destroying railroad bridges. When the military commander ignored the writ, the Chief Justice, in Ex parte Merryman, denounced Lincoln’s action, arguing that Article I, Section 9, dealt with limitations on Congress’s powers. Therefore, only Congress could suspend the writ.

In classic implied executive powers fashion, Lincoln responded that the Constitution did not specify which branch could suspend the writ, only the conditions under which it could be suspended. Moreover, the President could act due to the emergency involved. Both Lincoln and his attorney general, Edward Bates, declared that the judiciary was incapable of dealing adequately with organized rebellion. Bates, in his more detailed opinion, pointedly reminded the Court that the executive was not subordinate to the judiciary, but one of three coordinate branches of government. The President took an oath to “preserve, protect, and defend the Constitution,” Bates asserted, and the courts were too weak to accomplish that task.

In 2008, the Supreme Court decided Boumediene v. Bush. There, Justice Kennedy, in a 5-4 opinion, declared portions of the Military Commissions Act of 2006 unconstitutional, most significantly the portion that denied habeas corpus review to Guantanamo detainees. Aside from a host of constitutional and practical problems with the Court’s opinion, particularly troubling was the Court’s extension of the writ to people outside the sovereignty of the U.S. To do so, the Court had to distort the traditional Anglo-American understanding that the writ applied only within the nation’s territory.

While the writ has long applied to procedures of military courts, the Court previously made clear that it did not apply to acts of such courts outside the U.S. Thus, in Johnson v. Eisentrager in 1950, the Court, speaking through Justice Jackson, rejected a habeas petition from German prisoners who had been convicted of war crimes by an American military commission and were held at an American military prison in the American occupation zone in postwar Germany. The Eisentrager Court found “no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy, who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction.”

Where Justice Jackson and others feared to tread, Justice Kennedy rushed in. As Justice Scalia wrote in dissent in Boumediene, what drove the Court’s opinion was “neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated sense of judicial supremacy.” Precisely the attitude that President Lincoln and Attorney General Bates had emphatically rejected in their response to Chief Justice Taney.

Whether the Boumediene opinion has precedential virility, or whether it is merely judicial posturing, remains to be seen. Justice Scalia feared that it is likely to be the former. Early indications from the circuit courts suggest the latter. Those courts have read Boumediene narrowly as applying only to Guantanamo, not, for example, to detainees at Bagram Air Base in Afghanistan. If that interpretation prevails before the Supreme Court, Boumediene is mere institutional chest-beating. More troubling, in the long run, is the possibility that Justice Scalia’s concerns are well-founded, and that the Court’s use of habeas corpus in Boumediene is part of the expanding notion of “lawfare” that threatens to tie down the President’s commander-in-chief powers through a web of legal regulations and procedures, an American military Gulliver tied down by legal Lilliputians.

As Justice Frankfurter warned, the writ has “possibilities for evil as well as good.”

Note: Professor Knipprath will address Article I, Section 9, Clause 3 of the United States Constitution in his upcoming essay on: Article 1, Section 10, Clause 1, Scheduled for publication on April 11: 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 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.

April 5, 2011/3 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 9, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 09, Clause 1, W.B. Allen, Ph.D. 2. The Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 09 Clause 1, Declaration of Independence, W. B. Allen PhD

Guest Essayist: W. B. Allen, Havre de Grace, MD

Article 1, Section 9, Clause 1

1: 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.

At the Constitutional Convention of 1787 the debate that produced this provision came to a head on August 21 and sustained tense development until its resolution on August 25 in a unanimous vote (nem contradicente) that succeeded several divided votes that preceded the eventual compromise. This short narration, however, conceals a tortured and tense struggle that emerged from the debates over democratic representation, permissible forms and apportionment of taxation, and the wisdom and morality of slavery itself. What occurred, in short, is that the Convention elected to affirm national authority to prohibit the importation of slaves but to limit any tax on this particular import to a modest sum, in recognition of strenuous and unyielding objections especially from South Carolina and Georgia to the exercise of any limit upon their discretion in the matter of slavery, even after having been granted a bonus effect by the counting of three-fifths of the total number of slaves in the calculation of representation in the House of Representatives.

This essay is too limited in space to permit unfolding the full dimensions of the debate in the Constitutional Convention. We urge readers to recur to the Notes of Debates in the Federal Convention of 1787 Reported by James Madison for a thorough review of the debate in order to place in context the sometimes surprising positions of delegates as varied as Oliver Ellsworth, Luther Martin, and Roger Sherman as well as those of James Wilson, Gouverneur Morris, James Madison, and Alexander Hamilton. A more general view of the question of slavery is at the following link: http://www.williambarclayallen.com/chapters/new_birth_of_freedom.pdf.

As for the meaning of the constitution’s limitation on the power to import slaves, the most efficient way to comprehend it is to review the story of its implementation under the new government.

The first major debate over constitutional interpretation within the Congress took place in the House of Representatives on May 13, 1789. The subject was slavery, and it carried with it all of the ambiguous assumptions which freighted the several compromise provisions on the subject in the Constitution. It is to be remembered that the slave trade clause (Art. I, sec. 9), by which slavery could not be prohibited by Congress until the year 1808, but by which the Congress could impose an import tax on slaves, produced contrary interpretations even at the time, ranging from the more familiar southern claims that “we got all that we could” on behalf of slavery, to the less well known but extraordinary claim by James Wilson, that

I will tell you what was done, and it gives me high pleasure, that so much was done. . . [B]y this article after the year 1808, the congress will have the power to prohibit such importation, notwithstanding the disposition of any state to the contrary. I consider this as laying the foundation for banishing slavery out of this country; and though the period is more distant than I could wish, yet it will produce the same kind of gradual change which was pursued in Pennsylvania.i

The debate that occurred within the House of Representatives shows how far the hopeful interpretation prevailed over the shameful interpretation. On the surface it seems that the shameful interpretation prevailed, for the House voted by a large majority not to impose the constitutionally permitted impost on slaves. Further investigation reveals, however, that the vote was carried primarily by the northern and eastern antislavery votes, cast by those acting on the principle enunciated by men such as Fisher Ames and Roger Sherman that “no one appeared to be prepared for the discussion.”

Josiah Parker of Virginia introduced and pushed the measure, even to the point of eliciting a momentary attempt at a positive good argument for slavery from Jackson of Georgia. It was James Madison, however, who was most prepared to discuss the matter and most reluctant to yield to counsels of caution on a matter which others feared could abort the Union. His comments in this debate underscore his prior resort to slavery in order to move the Convention toward a Constitution almost two years earlier, for in 1789 the very existence of the Union weighs heavily in his reflections and promises the opportunity to act upon the question.

I cannot concur with gentlemen who think the present an improper time or place to enter into a discussion of the proposed motion . . . There may be some inconsistency in combining the ideas which gentlemen have expressed, that is, considering the human race as a species of property; but the evil does not arise from adopting the clause now proposed; it is from the importation to which it relates. Our object in enumerating persons on paper with merchandise, is to prevent the practice of treating them as such . . .

The dictates of humanity, the principles of the people, the national safety and happiness, and prudent policy, require it of us . . . I conceive the Constitution, in this particular, was formed in order that the Government, whilst it was restrained from laying a total prohibition, might be able to give some testimony of the sense of America with respect to the African trade. . .

It is to be hoped, that by expressing a national disapprobation of this trade, we may destroy it, and save ourselves from reproaches, and our posterity the imbecility ever attendant on a country filled with slaves . . . [I]f there is any one point in which it is clearly the policy of this nation, so far as we constitutionally can, to vary the practice obtaining under some of the state governments, it is this.

To Madison, it appears, the slavery option was such that it could, and should, be subject to calculated disincentives. An analysis of the vote on this measure, in a House of 59 representatives, ten of whom were present in the Constitutional Convention, reveals a preponderant disposition to treat slavery as an option to be discouraged but nevertheless a matter sufficiently sensitive as to make that difficult.

The next implementation event of the Founding era is the manner in which, when the constitutional prohibition had expired, the international slave trade was prohibited. The President and his Secretary of State initiated the process in 1807 with some apparent pleasure. They encountered a difficulty, however, which no one had anticipated. It centered on the question of what to do with any contraband (that is, ships and slave cargo) that may be apprehended. Jefferson’s original proposal envisioned a traditional disposal in the interest of the government. But other parties, especially Quakers, pointed to the grand paradox that would involve the United States in selling Africans as a means of denying that privilege to American citizens in the name of the rights of humanity. Madison’s speech of 1789—we treat persons as property in law in order to be able to prevent their being treated as property in practice—resonated loudly. It quickly became clear that Jefferson’s proposal involved a mere oversight. Yet, it was immensely difficult to discern what else might be done.

The counterproposal, that the Africans be freed rather than sold, was the immediate cause which touched off heated debate in 1807, but that debate, above all in the House of Representatives, produced the first compromise on slavery admitting the existence of irreconcilable differences between north and south. Here, for the first time, there was an explicit threat of civil war over the institution of slavery, and an accommodation which recognized that “Easterners” must not be asked to turn their backs on the Founding and principles of humanity, while “Southerners” must not be asked to condemn their own way of life. Therefore, the northern proposal to free the cargo within the United States and even within the slave states, was amended, first, to freeing them only in the north (i.e., indenturing them for a term of years at a stipulated wage), and ultimately, to remanding them on such provisions as the states might make, with only a tacit understanding that they were not to be dealt with as property.

It is interesting to speculate about what might have eventuated had Jefferson and Madison reflected initially on the impropriety of proposing legislation to handle the Africans as contraband. They may well have discovered the key whereby to unlock the door to the interstate commerce power as a device for regulating slavery. Not only did they not envision such a debate in 1807, however, but more importantly no one else did. Not even the Quakers, whose sharp-sightedness prevented a moral catastrophe, applied their principles in this way. It seemed in 1807 that no one at all, whether defender of slavery or abolitionist, looked at the “migration” language of Article I, section 9 as a probable means to resolve this difficulty.

This lends powerful credence to Madison’s 1819 claim that the language of the migration portion of the slave trade clause did not apply to slaves, though it may have regarded free blacks.ii His further remark, to the effect that any attempt so to construe it would have caused a brouhaha, helps explain the absence of recourse to it in 1807. As noted, the mild debate which did eventuate in 1807 produced threats of secession and war. Accordingly, Madison simply maintained that public opinion would not have abided such a turn, pointing to the one theme he consistently enunciated throughout his career, namely, the necessity of consent, not only to institute the government but to institute the fundamental change envisioned. This Madison explained repeatedly, as he did to Robert Evans in 1819.iii For Madison, the key to this progressive regime was consent, the index of which was public opinion. Whatever was to be accomplished had to be accomplished by that medium. So fervently did he believe this that he not only subordinated abolition to it, but, as he expressly recounted, all his labors to form the Democratic-Republican Party were predicated on that premise.

While public opinion in 1807 countenanced the prohibition of the slave trade, it did not countenance federal abolition of slavery. In the end, for Madison, the theory of republicanism is not a theory about institutional relations; it is a theory about the dependence of power on opinion. “Changes” in his views all took place at the surface, because, like planets, ideas about constitutionality wander about a fixed sun.iv

Efforts to implement Article I, Section 9, Clause 1, therefore, reveal a mosaic that captures all of the dimensions of the role of slavery and race in American politics. That role must be considered against the backdrop of the principles of the regime, because actions touching upon slavery and race bear heavy implications for those principles, and vice versa. This does not result from any cultural or traditional pattern so much as from the conscious choices with which Americans wrestled at every turn in our nation’s history, up to and including the decisions of the present generation.

It is especially obvious in the 1807 struggle over the prohibition of the slave trade: From the moment that slavery was in any degree limited, there arose to replace it the problem of how to handle the question of race. The answer to that question rests, in turn, not only on the fact that the consciously chosen principles of the regime entail equality and liberty for all humans but, far more importantly, on the question whether they require an open, heterogeneous society. The decisions that were made on this question in the aftermath of the War of American Union, in the form of the post-war amendments and civil rights legislation, indicate a positive response to the latter. But how far was that also true at the time of the Founding itself?

While it is inaccurate to assert that no one prior to the last half of the nineteenth century imagined an interracial society founded on the principles of the Declaration of Independence, that question is of minimal concern here. First, it is of minimal concern because it is subordinate to the question of whether the Declaration was understood to include all human beings without regard to the practical social implications of that principle. Second, it is of minimal concern because the status of slavery and race under the Constitution or regime—and how to legislate in regard to it—is and has been a single question. Madison’s concern to avoid the “imbecility” of a country filled with slaves does not require the corollary of turning slaves into free citizens in the republic. As the 1807 slave trade debate reveals, however, that is the very question which arises the moment the freedom of the African is conceded. Hence, the debate was in fact a debate about whether and how to integrate Africans within the United States. The fact that Americans posed the same kind of question then and now points the way to an understanding of the dilemma we now face.

_________________________

i Pennsylvania State Ratifying Convention, December 3, 1787.

ii Letter to Robert Walsh,, November 27, 1819, printed in Max Farrand, Records. op. cit., vol. III, p. 436.

iii Letter to Robert Evans,, June 15, 1819,, in The Writings of James Madison, ed. by Gaillard Hunt (New York: G. P. Putnam I s Sons, 1908), vol. VIII, pp. 439-441.

iv See especially Madison’s account of his “different” opinions on the constitutionality of a national bank, in the letter to President Monroe, December 27, 1817. Works, vol. III, pp. 55-56

W. B. Allen

Havre de Grace, MD

April 4, 2011/3 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 18 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 18, Joerg W. Knipprath 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 01, Article I Section 08 Clause 18, Federalist No. 44, Joerg W. Knipprath

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article 1, Section 8, Clause 18

18: 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.

In a letter to Edward Livingston in 1800, Thomas Jefferson addressed the potential of infinite expansion of national power through the “necessary and proper clause” (Article I, Section 8, clause 18) after Congress chartered a mining company. Jefferson derided the exercise by comparing the constitutional claims of the law’s supporters to a popular nursery rhyme:

“Congress are authorized to defend the nation. Ships are necessary for defense; copper is necessary for ships; mines, necessary for copper; a company necessary to work the mines; and who can doubt this reasoning who has ever played at ‘This is the House that Jack Built’? Under such a process of filiation of necessities the sweeping clause makes clean work..”

Who can doubt this, indeed? Especially when, just last year, in U.S. v. Comstock, Justice Breyer led the Supreme Court in finding that the necessary and proper clause permits the national government to remit into federal civil commitment persons deemed to be sexually dangerous, even though the federal government could no longer hold them on a federal criminal charge. After applying one of the malleable multi-factor balancing tests he so favors, Justice Breyer determined that the necessary and proper clause permits Congress to enact laws that criminalize conduct that threatens the beneficial exercise of its enumerated powers; and that, therefore, Congress can imprison those who engage in that conduct; and that, therefore, Congress can pass laws to govern those prisons; and that, therefore, Congress can act as custodian of its prisoners; and that, therefore, Congress can pass a law that allows the federal government to keep those former prisoners “to protect the public from dangers created by the federal criminal justice and prison systems.” Besides, Breyer averred, the new law was only a “modest expansion” of Congress’s power. Indeed. Were he alive, Jefferson would recognize the game.

The necessary and proper clause is the Constitution’s version of the “implied powers” theory. Congress is the American people’s legislative agent. As such, the people gave Congress certain objectives to achieve. It is a basic principle of agency law that the agent has not only the powers expressly assigned by the principal but, by implication, also those powers necessary to carry them out. But there is no need for application of “implied powers” because the people, as Congress’s principal, themselves provided the means to carry out Congress’s assigned objectives. The necessary and proper clause specifies that Congress has the power to make laws “necessary and proper for carrying into execution” the powers conferred by the Constitution on the federal government.

The clause has long been hotly debated. Opponents of the Constitution, especially New York’s Robert Yates (“Brutus”), repeatedly warned of the dangers from an expansive interpretation of “necessary and proper.” They predicted that an unrestrained power to accomplish formally limited powers itself effectively created an unlimited power to legislate through pretext. Madison, responding to Yates in Federalist 44, sought to tie the clause to the other powers in a luke-warm argument that made the clause sound like the least worst alternative the Framers faced. Moreover, he attempted to narrow the meaning of the clause to those means that were “indispensably necessary” and “required.” Ultimately, however, Madison threw up his hands, effectively conceded the argument about the dangers, but urged the people to remain alert to usurpations by Congress.

The Supreme Court weighed in with McCulloch v. Maryland in 1819. Chief Justice Marshall rejected the restrictive interpretation of “necessary” urged by the old anti-Federalist warhorse, Maryland’s wily attorney general Luther Martin. Martin’s interpretation had support both in the dictionary meaning of the word at the time and Madison’s slips-of-the-pen in Federalist 44. Although this decision is correctly read as providing the constitutional material for the 20^th century’s “Big Bang” expansion of federal power, Marshall apparently believed he was much more restrained and cautious. He even took the unprecedented step of defending that view in a pseudonymous battle of editorials in the Richmond papers with Virginia’s chief justice, his cousin Spencer Roane. Marshall insisted that, while the reading of “necessary” was to accommodate the needs of the times, the clause had to be tied to the other enumerated powers. Any such law had to comply with both the letter and the spirit of the Constitution. It was not enough that Congress could somehow connect a law to the form of one of its other powers. Pretextual uses of the necessary and proper, or any other clause, would be unconstitutional.

In his almost flawless dissent in Comstock, Justice Thomas takes Justice Breyer to task for abandoning the Constitution’s text and Chief Justice Marshall’s boundaries. Thomas points out that the Comstock majority makes no attempt to show that the law itself directly carries into effect any enumerated power of Congress. At best, it does so through an attenuated chain, exactly as Jefferson criticized in his letter to Livingston. The only objective that the Comstock Court mentions that the law directly advances is “to protect the public from dangers created by the federal criminal justice and prison systems.” And that is not an enumerated power.

The necessary and proper clause is not an isolated provision. It is part of the delicate balance of national and state powers the Framers established in the American version of federalism. That balance is made concrete in several other provisions, beginning with Article I, Section 1, which declares that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representative.” That premise, along with the very fact of a limited enumeration of Congressional powers, is evidence that the letter, and certainly, the spirit of the Constitution argue against so expansive an interpretation of the necessary and proper clause that Congress is given an unrestricted power to legislate through a constitutional back door.

The Court’s expansive and unfounded reading of necessary and proper reflects the dominant Washington credo. One has heard over and over from certain partisans in the debate over the current administration’s programs that Congress has the power to do whatever it wants and that the Constitution has no part to play in the debate. Indeed, judging by the distaste, indeed hostility, shown by some Congressmen to the reading of the Constitution in that chamber at the opening of the current session, raising constitutional questions about Congress’ actions may represent some novel mutation of hate speech. Of course, indicting the Constitution (especially its formal restraints on legislative power) as an obstacle to “social advancement” is not new. Then-professor Woodrow Wilson and similarly-inclined academics charged that central tenet of Progressivism a century ago. How little has changed in the progressive world-view.

At the same time, it is undeniable that, over the years, the doctrine of enumerated powers has suffered severe erosion, an erosion that could not have occurred over so long without the tacit complicity of the American people. They have not been alert to Congressional usurpations, as Madison urged. It is inevitable, as people intuit, and as writers from Plato to Machiavelli to Yates and Madison have explained, rulers seek first to maintain and then to expand their power. Over time, there occurs an institutional accretion of power at the expense of personal liberty, as each precedent gives rise to an incremental expansion. Again, the contest over ObamaCare now playing out in the federal courts is the latest (and perhaps final) step in the enfeeblement of the doctrine.

April 1, 2011/3 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 17 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 17, William C. Duncan 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 17, Federalist No. 43, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Article 1, Section 8, Clause 17

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

At the time of the Constitutional Convention, conventional wisdom identified the two prime candidates for the seat of the new national government as Philadelphia and New York City. In fact, during the Convention, when one delegate proposed forbidding the placement of the national capitol in the capitol of any state, Gouverneur Morris “did not dislike the idea but was apprehensive that such a clause might make enemies of Philda. & N. York which had expectations of becoming the Seat of the Genl. Govt.” Records of the Federal Convention 2:127 (July 26, 1787).

The Framer’s primary concern was to ensure that the new national government was not dependent on the state in the management of the capitol or of other federal property. During the Revolution, mutinous soldiers had forced Congress to leave Philadelphia for Princeton because the former city could not protect them from the insult. (Of course this lack of dependence did not prevent the sacking of the new national capitol during the war of 1812 but no state could be blamed.)

Debate over this provision was fierce in the Virginia ratifying convention. George Mason thought it one of the most dangerous clauses because a district without any State supervision would be subject to the tyranny of the new national government. Others thought the new district could become a haven for bad actors fleeing from other states. James Madison dismissed this concern, noting that the objections “are extremely improbable; nay, almost impossible.” Henry Lee asked: “Were the place crowded with rogues, he asked if it would be an agreeable place of residence for, the members of the general government, who were freely chosen by the people and the state governments. Would the people be so lost to honor and virtue, as to select men who would willingly associate with the most abandoned characters?” Philip B. Kurland & Ralph Lerner, editors, 2 The Founders Constitution 220-222 (1987). The solution to the problem of creating a haven (or havens in the other possessions of the national government) was eventually settled by express reservations of the states when ceding land to the national government.

In 1790, Congress provided for a new capitol on the Potomac and delegated to George Washington the authority to select the site. Land was ceded by Virginia and Maryland for the purpose of creating a capitol but Virginia’s land has since been returned. Congress began meeting in the District of Columbia in 1800.

The Framers understood that people would live in the new capitol and James Madison noted that “a municipal Legislature for local purposes, derived from their own suffrages, will of course be allowed them.” Federalist 43. Currently, under the Home Rule Act of 1973, D.C. is governed by an elected mayor and District Council. Consistent with the Constitution, however, the national Congress still exercises oversight over District affairs. Congress may overturn acts of the District Council and has refused to fund certain Council decisions (like a domestic partnership registry) and has even ordered a referendum to be held on a Council decision to prohibit the death penalty. From 1995 to 2001, District finances were overseen by the Congressionally-created District of Columbia Financial Review Board to prevent the District from financial collapse due to mismanagement.

Another concern raised by this clause, however, was that the national government not become unduly acquisitive in taking lands for national purposes from the States. The solution was to require that the national government purchase land “by the Consent of the Legislature of the State in which the same shall be.” Western states often wonder how the federal government can control such large portions of the States as public lands. Typically, as a condition of admission to the Union, these States allowed the national government to retain ownership of public lands gained during the Territorial existence of the new State. The U.S. Supreme Court seems to have approved this practice in 1885. Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525 (1885). It still seems inconsistent with the Framer’s concern to prevent national takeover of state land without express consent of the Legislature, however.

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 31, 2011/3 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 14-16 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 14-16, George Schrader 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 14-16, Article II, George Schrader, The Articles of Confederation

Guest Essayist: George Schrader, Student of Political Science at Hillsdale College

Article 1, Section 8, Clause 14-16

14: To make Rules for the Government and Regulation of the land and naval Forces;

15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

16: 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;

In discussions of the constitutional interaction between the federal government and the military, much of the conversation centers on the office of the president. This is logical, as the president is declared the, “commander in chief of the army and navy of the United States” in Article Two of the Constitution. What should not be overlooked, however, is the important role the legislature plays in how America’s armed forces operate. While the president may have greater direct control over the military, especially in times of war, Congress’s powers under Article One, Section Eight provide both an important check on presidential power, as well as a means for maintaining security within the nation.

Perhaps the most prominent theme throughout this section of Article One is the intent of removing some control of the military from the president and placing it in the hands of Congress. Examples of this are seen in Clause Fourteen’s allowance for Congress to, “make rules for the government and regulation,” of the army and Clause Fifteen’s reliance on the legislature to summon, “the militia to execute the laws of the Union.” One may reasonably ask why the Founders, who spoke often in the Federalist Papers of having an independent and energetic executive, would make such enormous cessions of executive power to the legislature. The answer appears to be rooted primarily in a fear of tyranny.

When one considers the concerns of average citizens during the time of the Founding, one of the most common fears was that America would slide into a tyrannical monarchy. The most likely origin for such a monarch was the president, a suspicion supported by history. Most popular forms of government, from the democracy of Athens to the republic of Rome, had collapsed into a tyranny once a sufficiently devious dictator found a weakness in the government’s structure. Furthermore, these tyrants often obtained and secured their power through the use of the executive’s military control. Examples of this abound, from Caesar in ancient Rome to Napoleon in France. If America’s army were to overthrow the popular government it would most likely be at the behest of the president.

This fear of a powerful military president led to some problems for the Founders. Legislatures, by their nature, make laws and do not independently enforce them. Furthermore, it was generally understood that foreign diplomacy was best carried out by an entity separate from the legislature for reasons too nuanced to explore here. Congress was therefore unfit to control the military by itself. The military could also not be entirely entrusted to the states in the form of completely independent militias, as the nation’s experience under the Articles of Confederation proved that this system was too unorganized to react quickly to an emergency. A president was literally the only solution.

Regardless of the necessity of independent executive control over the military, the Founders were still not comfortable simply allowing the president to wield unchecked control over the nation’s armed forces. The limitations described in these clauses, along with Congress’s power over the budget, provide precisely these checks by creating situations in which the president’s normally supreme role in the military is eclipsed by the legislature. It is interesting here to note that the limitations, particularly Clause Fourteen’s call for the legislature to create rules for the military, were carefully selected so as to only grant Congress powers that fit within its typical duties of creating law. In this manner, the Founders reduced the threat of a military dictatorship led by an over-ambitious president without gravely distorting the purpose of the American legislature.

While not an issue which is frequently considered today, at the time of the Founding the threat of a military coup weighed heavily upon the minds of many Americans. Though weakening the authority of the president over the military has its disadvantages, the Founders’ decision to do so in ways consistent with the purpose of Congress created perhaps the best possible compromise between presidential power and civic security.

George Schrader is a student of political science and German at Hillsdale College.

March 30, 2011/7 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 10-13 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 10-13, Horace Cooper 1. The Federalist Papers, 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 10-13, Federalist No. 69, Horace Cooper, The Articles of Confederation

Guest Essayist: Horace Cooper, legal commentator and a senior fellow with The Heartland Institute

Article 1, Section 8, Clause 10-13

10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
13: To provide and maintain a Navy;

It is especially timely to discuss the so-called “war” powers of Congress in light of recent events internationally. Although much focus at present is directed at the issue of the President’s authority, this essay will focus exclusively on the United States Congress.

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;

Pointedly Congress does not have specific authority to carry out the prosecution of a military engagement, but it does have significant authority to participate in the decision and continuation of that military engagement. In that sense, the “War Power” is divided between the President and Congress.

Many Americans forget that the “War Powers” under the Articles of Confederation ostensibly rested with the national government but was far more attenuated in reality because it relied upon an enthusiastic acquiescence of the several states: Article III of the Articles of Confederation. The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

The Founders sought to address this matter. Not unlike the present debates over the President’s authority to carry out military actions, the Founders feared the ability of the monarch to enter into war without the consent of the people as they had witnessed the royal wars for centuries in Europe. At the same time, they had learned that they should not take the principle of diffusion of war power too far. In their mind, the Articles of Confederation had in fact gone too far and it represented a major national security threat for the newly independent United States of America.

As James Madison would explain to Thomas Jefferson in a letter in 1798, “The constitution supposes, what the History of all [Governments] demonstrates, that the [Executive] is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the [Legislature].”

Thus, specific war powers are granted to the Congress – not the least of which is the actual power to declare war.

During the existence of the Articles of Confederation, the national government had the sole authority to create courts for the trials of piracy and related felonies committed on the high seas. However, the national government did not have any authority to address the issue of compliance with the existing international rules against piracies and other crimes on the high seas. Prior to the Revolution, all of the European nations had entered into agreements but the U.S. did not have authority to enforce these rules or to reject them. The Constitution specifically addresses that limitation and gave the Federal government the ability to choose to comply, reject or modify international agreements regarding piracy.

First, Congress has the specific power to “declare war.” A declaration of war is a formal declaration issued by at least one national government indicating that a state of war exists between that nation and another. Congress has officially declared war five times. In Federalist 69 Hamilton reminds readers that the power to declare war was an important one since the President of the U.S. did not have it. Under the Constitution, Hamilton explains, the president’s authority was:

“. . . in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the land and naval forces . . . while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all of which by the Constitution would appertain of the legislature.”

Next, let us look at the power of Congress to grant letters of Marque and Reprisal. This power grant a far more unusual and yet clearly lawful means for Congress to carry out its international and/or national security interests. Here’s the essence of the power: Congress can authorize a private person or private army – not a part of the United States armed forces – to conduct reprisal military-like operations outside the borders of the U.S.

Not unlike the powers exercised by the French Foreign legion, our Constitution authorizes Congress to grant such a right presumably with payment or a bounty in any instance in which the citizens of the U.S. are injured by individuals or armies of another country whenever the other country denies justice to the American(s) who have been harmed.

Additionally there is the rarely examined “capture clause” – the power of Congress to establish the rules for the distribution of spoils of captured enemy ships or captured territories. In the modern war era, military victims publicly eschew the capturing or claiming of the goods and property of the conquered parties. However, this was not always so. In fact, the so-called “capture clause” was considered extremely important to the fledgling nation of America.

Often times the federal government could not afford to pay soldiers or obtain credit to buy armaments. By being able to set up a means for disposing of the goods and other spoils that were captured in battle, the U.S. had an alternative way to address this issue. General George Washington declared during the Revolutionary War that a centralized and standardized system for the handling of prizes was vital to the war effort. In fact, one of the first federal courts created by the United States government under the Articles of Confederation was the Federal Appellate Court of Prize – which existed to adjudicate disputes over spoils captured in war.

The final war power of Congress involves the authority to raise and support armies and to provide and maintain a navy. While most of the early residents of America recognized that the federal government should have authority to “raise and support” armies, ultimately there was some disagreement over how that power should be dispersed. Under the crowns of Europe, kings could not only declare war, they also had individual power to “raise and support” armies without needing the input of their subjects. Even when Kings co-existed with Parliaments, their ability to exercise their war powers nearly carte-blanche stymied the ability of their subjects to exercise any significant influence – not just in war – in nearly all matters of national interest since wars sapped resources, finances, and labor in a way that Parliament couldn’t readily counteract.

Additionally the standing army operated as a direct threat not just on the purse strings of the nation but a clear threat was aimed at the citizenry as well especially when these forces concentrated themselves within the home territories in large numbers. Instead of giving this power to the President, our system specifically requires that Congress approve the creation and timing of all rules involving the establishment of an army and navy. In fact, this grant of authority is the basis for Congress’ power to establish the Uniform Code of Military Justice as well as selective service requirements. With regard to the army in particular, the Constitution included the appropriations limitation as a means to quell fears that a standing army might be used to threaten American citizens.

Indeed Congress has broad power when it comes to war making. But it is noteworthy that this power is divided in many ways with the President – not as a point of confusion or a result of a lack of trust in either the executive or the legislature, but instead as part of a precise calculation that if both the President and Congress must collaborate in order to carry out war, war would not be entered into easily or for long.

Horace Cooper is a legal commentator and a senior fellow with The Heartland Institute

March 28, 2011/14 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 09 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 09, Charles K. Rowley, Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 08 Clause 09, Article II, Charles K. Rowley PhD, Connecticut Compromise, Federalist No. 81

Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute

Article I, Section 8, Clause 9

9: To constitute Tribunals inferior to the supreme Court;

There is much more to these seemingly simple words than meets the eye. Indeed, one cannot write meaningfully about them without first advancing to Article III, Section 1 of the Constitution: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. 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.

It is not my intent to deal with Article III, Section 1 more than is minimally necessary for making sense of Article I, Section 8, Clause 9. I ask the reader’s indulgence to this end.

It is noteworthy that Article III, Section 1 of the Constitution establishes one federal Supreme Court only for the entire United States, and that it separates the powers of this court from those of Congress and the executive. By establishing just one Supreme Court, the Founders provided for a uniformity of interpretation of the federal laws that otherwise might not have been forthcoming. By establishing the Supreme Court as separate from the Congress the Founders benefited from the genius of James Madison who built in checks and balances as a response to the Connecticut Compromise that provided equal representation to all the States in the Senate of the United States. Prior to that Compromise, Madison’s Virginia Plan had advocated subservience of the Supreme Court to the Congress.

Note, however, that the Constitution does not itself create judicial bodies other than the Supreme Court. The Congress alone – not the Supreme Court not the Executive – is empowered, should it so choose, to take responsibility for such matters. Exactly how it should do so and in what form would be subjected to close scrutiny of the precise meaning of the wording of the Constitution.

In one – and in my judgment convincing – interpretation, the power given to Congress in Article I, Section 8, Clause 9 ‘To constitute Tribunals inferior to the supreme court’ plainly relates to the power given to Congress in Article III, Section 1 to ordain and establish inferior Courts. If such is the case, then Article I empowers Congress to establish inferior judicial bodies (tribunals and courts being viewed as synonyms). And Article III reaches out to the tenure conditions attached to all such judges.

Since, in practice, Article I tribunals have not been viewed as identical to Article III courts, however, a careful parsing of the relevant words becomes essential, even if only to explain unjustifiable error.

As always, in parsing the words of the Constitution, it is important to rely upon the meaning of words in 1787, not those of the early twenty-first century. To this end, I shall rely on the written records of the Founding Fathers and of the major dictionaries of that era, such as those of Samuel Johnson and Noah Webster.

The term ‘tribunal’, to be sure, carries a distinctive historical connotation, derived from the Roman tribunate, a raised platform on which the seats of magistrates were placed. The term ‘court’, by contrast, derives from the judiciary’s close association in England and France with the king. However, by Blackstone’s day, the terms were viewed as synonyms in all the major dictionaries. Throughout the early deliberations of the Philadelphia Convention, the Founding Fathers also used the two terms interchangeably, as does Hamilton in Federalist No. 81. Of course, such evidence does not guarantee that the Constitution itself deploys the term ‘tribunal’ under Article I as a synonym for the term ‘court’ under Article III.

There is some support from the drafting history for the view that the Constitution distinguishes between the two concepts. The distinction may have grown out of the mid-convention debates over the possibility of employing some non-life-tenured judges to adjudicate federal claims. Specifically, Congress might appoint state tribunals to act as courts of first instance in deciding questions of federal law. Madison’s notes from the debates offer support for such a change in emphasis once the New Jersey Plan and the Virginia Plan were jettisoned following the Connecticut Compromise. For the Compromise eliminated an early provision that mandated the creation of lower federal courts and substituted a regime of congressional discretion (as confirmed by Articles I and III). At this point, the Committee of Detail dropped the usage of the term ‘tribunals’ to describe the federal courts in Article III, and it required life-tenured judges in Article III courts, while refusing to impose any such requirement for Article 1 tribunals.

Further support for distinguishing between Article I tribunals and Article III courts may be discerned in the empowerment provisions themselves. Article I empowers Congress to ‘constitute tribunals interior to the supreme court’, whereas Article III empowers Congress to ordain and establish courts. This difference in description of congressional powers is suggestive that the two adjudicative bodies might arise in different ways and with different degrees of permanence. Specifically, Congress might ‘constitute’ tribunals either by creating new bodies from scratch, or by designating existing bodies as inferior tribunals. To ‘ordain and establish’ inferior courts, by contrast, seems to contemplate the creation of new courts established in accordance with Article III. Such a fine distinction is in accordance with the major dictionaries of the late eighteenth century.

In any event, Congress has exploited such parsing opportunities in order to distinguish clearly between Article I tribunals and Article III courts (A fairly good guide to congressional behavior in general is that if you give it an inch it will take a kilometer). From the outset, Congress has established some (but not all) Article I tribunals without the Article III safeguards of life-tenure and remuneration. These tribunals consist of certain federal courts and other forms of adjudicative bodies, endowed with differing levels of independence from the legislative and executive branches. Some take the form of legislative courts set up by Congress to review agency decisions; others take the form of military courts-martial appeal courts, ancillary courts with judges appointed by Article III and administrative judges.

As one would predict, Congress (and the Executive) does not always relish the idea that Article I tribunals should be inferior to the Supreme Court. Yet that is an inescapable reading of the Constitution. The specification that tribunals and lower courts must remain inferior cements the requirement of the Supreme Court’s ultimate supremacy. The requirement of inferiority precludes Congress (and by clear implication, the executive branch) from creating free-standing courts, investing them with some portion of judicial power, and giving them freedom from oversight and control of the Supreme Court. In this regard, the Founders were only too mindful of such abuses of executive power by the Stuart kings in England’s not-so-far-distant past.

This portrait of Article I tribunals as acting outside of the judicial power, while remaining subject to oversight and control by Article III courts is reflected in modern jurisprudence. However much it would like to do so, Congress (and the Executive) cannot create tribunals and place them entirely beyond the supervisory authority of the federal courts.

The most pressing recent variant of this logic effectively deals with the decision by President George W. Bush to create military tribunals for the adjudication of criminal claims against individuals designated as enemy combatants. Although the government has argued for an exceedingly restricted judicial role in overseeing such tribunals, the Constitution clearly requires that they must remain inferior to the Supreme Court and subject to judicial review, at least when such tribunals operate within the jurisdiction of the United States.

Americans should be eternally thankful to the Founders for providing us with such protections, both under Article I and under Article III of the Constitution. Unless the parchment unravels completely, there will be no Court of the Star Chamber, no Court of High Commission, and no Bloody Assize in the Unites States of America.

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). For further details see www.thelockeinstitute.org and www.charlesrowley.wordpress.com

March 28, 2011/7 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 07-08 of the United States Constitution

Allison Hayward, Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 07-08 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Article I Section 08 Clause 07-08, The Articles of Confederation

Guest Essayist: Allison Hayward, Vice President of Policy at the Center for Competitive Politics

Article 1, Section 8, Clause 7-8

7: To establish Post Offices and post Roads;

8: 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;

Clauses 7 and 8 of Article 1, section 8 demonstrate both the interest the Founders had in facilitating economic growth and prosperity, and the belief they shared that such power had to be made explicit in the Constitution. The would not have been satisfied to hold, as we now do, that Congress’s regulatory power is presumed unless constrained by a specific provision. Such a open-ended power would become tyrannical, they thought.

At the same time, they weren’t opposed to governmental intervention if appropriate to serve the general welfare. The federal legislative power in particular could counterbalance provincialism in the states. Having just been through the disaster that was the state of things under the Articles of Confederation, many Framers understood that greater federal power was necessary.

The debate was over how much would be too much power.

The “Post offices and post roads”in clause 7 sound quaint, but in fact were an enormously important piece of infrastructure. Post roads were some of the first roadways built, and many former post roads remain today in our communities, whether we recognize them as such or not. But whenever the government provides such infrastructure, there is also the danger of waste, fraud, and corruption between the members with control over the funding, and their constituencies. Thomas Jefferson, for one, thought the power would prove “a source of boundless patronage in the Executive.” and “a bottomless abyss of public money.”

Jefferson wasn’t entirely incorrect. Postmasters have been patronage appointments. The location and accessibility of post offices is a critical constituent issue, and employment in the Post Office is valued as a safe, reliable and well-compensated career. For shrinking communities, the potential they might lose “their” post office is a cruel final blow to civic pride. The Post Office monopoly on “mail” delivery has eroded as the private package delivery industry – and email – have taken over tasks once done by the post office. But these private communications are heavily dependent on a physical infrastructure that was build by government. Had it been left to local communities and individuals, no doubt road would have been built, but with “local” priorities in mind, not national ones, with consequences for the nation’s westward expansion and domestic cohesion.

Clause 8 provides Congress with the power to legislate in the areas of patents and copyrights. The founders believed the protection of intellectual property was important to the growth and prosperity of the nation. Also, the author’s “copy right” was a right in English common law and was respected by the colonial America; and Parliament protected an investor’s right to his invention for 14 years. Alexander Hamilton even advocated funding the emigration of “Artists and Manufacturers in particular branches of extraordinary importance.” The Founders appreciated the good incentives these rights would create, by giving people with successful and popular ideas the ability to profit from them for a time.

The world of patents today is struggling with some extreme applications of these principles. Because a person can “patent” an invention without actually bringing the invention into existence, subsequent inventors who do make commercially beneficial use of an idea can be compelled to “lease” the unused patent, or pay damages for infringement. Rather than encourage industry and the useful arts, such patent litigation adds costs to the commercially active innovator, which are ultimately passed along to consumers.

March 25, 2011/5 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 05-06 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 05-06, Troy Kickler, Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 05-06, Article I Section 10 Clause 1, Article I Section 10 Clause 2, Article I Section 10 Clause 3, Federalist No. 42, The Articles of Confederation, Troy Kickler PhD

Guest Essayist: Troy Kickler, Founding Director of North Carolina History Project and Editor of northcarolinahistory.org

Article 1, Section 8, Clauses 5-6

5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

When the U.S. Constitution was drafted at the Constitutional Convention of 1787 and then submitted to the states to ratify, convention delegates attempted to correct what they considered to be weaknesses in the Articles of Confederation. They worked to strengthen the national government’s role in monetary policy and eliminate factors that might prevent a unified American economy, with the states working in concert. Three steps to achieve those goals included the clauses pertaining to the coinage of money, a standard of weights and measurements, and the punishment of counterfeiting

Under the Articles of Confederation, the national government and the states had the authority to coin money. But in Article 1, Section 8, the enumerative article that gives certain powers to the United States government, the Constitution specifies that Congress have the exclusive right to coin money.

During the Revolutionary War (1776-1783), states had accumulated much debt and some had difficulty paying for their war costs. As a result, state governments issued bills of credit to provide a form of debt repayment. Meanwhile during the 1780s, inflation started soaring. The issuance of paper money, North Carolina Founder Hugh Williamson writes in his 1788 essay, “Remarks on the New Plan of Government,” contributed to a ruinous economy and a loss of honor on the global stage. Convention delegates, therefore, included the coinage clause as a means to stop inflationary measures and bills of credit that abounded across the states. (Another clause–Article 1, Section 10–prevents states from issuing bills of credit and paper money.)

Although paper money is commonplace in today’s world, it is absent from Article 1, Section 8. The Founders were familiar with the practice of printing money and more than a few had definite opinions regarding the practice. Some scholars have suggested and even argued that its omission indicates that Congress does not have the authority to print paper money or issue bills of credit. A series of Supreme Court cases in the late 1800s, including Knox v. Lee (1871) and Julliard v. Greenman (1884), however, expanded the government’s role in monetary policy; the Court ruled that the power was inherent in a sovereign government.

In 1787, convention delegates also included the weights and measurements clause to promote uniformity in trade. Allowing states to separately value foreign currency and create individual exchange rates, writes Joseph Story in Commentaries on the Constitution (1833), invited “infinite embarrassment and vexations in the course of trade.” A uniform system ensured national honor and also lessened the chances that the innocent would be subjected to “the grossest frauds.” Indeed, a fixed standard removes confusion in the market place and limits the efforts of the deceitful.

The Framers also believed that a Congressional authority to value foreign coin helped ensure uniformity in trade. In Federalist 42, James Madison feared 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.” To Madison, the clause was a needed corrective. It reduced, if not eliminated, monetary confusion and bolstered the American economy.

In the essay, Madison also links the constitutional provision for giving the national government the authority to punish counterfeiting with the weights and measurements clause. Both were necessary to secure the value of American coin and eliminate confusion in trade.

Some scholars have contended that the counterfeiting clause is superfluous; the authority to punish counterfeiting is inherent in the power to regulate coinage, the argument goes. Legal scholar David F. Forte, however, points out that the Framers included it for three reasons: to distinguish counterfeiting from treason, as it had been considered in England; to ensure that Congress had authority over international incidents on American soil that involved counterfeiting of foreign currency; and to ensure national supremacy in monetary policy.

The coinage, weights and measurement, and counterfeiting clauses solved various commercial and monetary problems, and they eliminated confusion in market places by enumerating certain powers to the national government. They also were symbolic, buttressing federal supremacy in monetary policy.

Troy Kickler, Ph.D., is the Founding Director of North Carolina History Project and Editor of northcarolinahistory.org

March 24, 2011/6 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 04 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 04, Horace Cooper 1. The Federalist Papers, 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 08 Clause 04, Declaration of Independence, Federalist No. 32, Federalist No. 42, Horace Cooper, The Articles of Confederation

Guest Essayist: Horace Cooper, legal commentator and a senior fellow with The Heartland Institute

Article 1, Section 8, Clause 4

4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Here are two special grants of authority to Congress that the framers of the Constitution agreed were necessary. The first power is Congress’ authority “to establish an UNIFORM RULE of naturalization throughout the United States.”

Naturalization is defined as the process of becoming a citizen or the establishment of citizenship rights. At the time of creation of our Constitution, naturalization was commonly recognized as “The act of investing aliens with the privileges of native subjects.” It was also common among most of the European nations that the law draw a distinction between being a citizen and being an alien (a visitor or temporary resident). Arguably, this distinction, which we still observe today, existed at least as early as the foundation of the Roman Empire.

The power to establish “uniform” rules of naturalization is among only three that Alexander Hamilton identified in Federalist #32 as being exclusive powers of the federal government. The other two being setting rules and exercising jurisdiction over the District of Columbia and the right of Congress to exclusively “lay duties on imports and exports.”

Prior to the adoption of the U.S. Constitution, the states had created their own individual rules for determining citizenship. As sovereigns, they could do so. However, with the ratification of the Constitution, Congress was given the authority to establish a uniform naturalization policy – one for the entire nation.

Here’s an interesting side note: Modern readers may not be aware that throughout much of the early part of our nation’s history policymakers were aggressively trying to encourage migration to the U.S. and it was felt that by granting central authority to the Federal Government barriers to immigration could be lowered.

The lack of a uniform immigration rule was — generally speaking — considered one of many defects in the Articles of Confederation. James Madison notes in Federalist #42 that “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.” Madison and the other founders were concerned about the fact that now that the states were a nation, should Virginia be allowed to set the naturalization rules for South Carolina or vice versa? As long as states had this citizenship power, they would in essence interfere in the ability of people who happened to arrive in a given state to be able to migrate to another state. This would frustrate the notion that we were actually citizens of a nation.

Also in Federalist #42 Madison posits the potential that without a uniform rule for citizenship a person could become a resident of two different states – one with strict rules for admission and another with less strict. In the event this individual committed a crime that might lead to forfeiture of his citizenship rights in one state, he could potentially argue that his rights in the other state allow him to supersede the penalty. “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.”

Now turning to the topic of bankruptcy. Notwithstanding Madison’s view that “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….” there is quite a bit of discussion that could be had on this topic.

Today the discussion of bankruptcy is fraught with disputes over the moral legitimacy of needing to give bankrupt individuals a second chance versus a system that allows scofflaws to walk away from their financial obligations. The American federal system of bankruptcy from its inception has erred on the side of the “second chance” perhaps because so many of the earliest U.S. residents were men and women who migrated for to America for a “second chance.”

Bankruptcy or insolvency is a legal status of a person who cannot repay the debts he owes to his creditors. Note that unlike naturalization law, even though bankruptcy cases are filed in United States Bankruptcy Court (units of the United States District Courts), and there are federal laws which govern bankruptcy procedure, state laws have a significant impact on the outcome of disputes.

While the framers might have dismissed the need for a comprehensive discussion on the topic – the topic of bankruptcy is not only interesting, it is example where the U.S. was quite advanced in its attitudes – well ahead of other countries of its day.

The American system is in many ways a response to the history of Bankruptcy while being much more modernist. In England, the first official bankruptcy laws were passed in 1542, while Henry VIII ruled. Under its terms, a bankrupt individual was considered a criminal and was subject to criminal punishment, which could range from imprisonment in debtors’ prison to hanging. By the early Eighteenth century, a significantly more enlightened attitude dawned. The British adopted statutes that allowed the discharge of some debts as long as debtors agreed to pay what they could afford.

Under the Articles of confederation, most states were still throwing into jail individuals who could not pay their debts. Robert Morris, a signer of the Declaration of Independence was one of many prominent Americans subject to this indignity. However, because of Congress’ grant of this power, the U.S. was able to take the lead in the uniquely American practice of debtor’s “relief.” Under its terms, not only was prison ended for debtors, but also individuals could choose to initiate bankruptcy for themselves rather than wait for creditors to force them and the Court’s involvement ensured a far more equitable accounting of the debts and the ability to discharge those that simply could not be paid.

As the process of examination unfolds throughout this 90 day cycle it becomes increasingly clear that the United Constitution is a remarkable document which addresses policy issues of the past and the present in very careful and well thought out ways.

Horace Cooper is a legal commentator and a senior fellow with The Heartland Institute

March 23, 2011/5 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 03 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 03, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 03, Federalist No. 23, John S. Baker Jr. PhD

Guest Essayist: Dr. John S. Baker, Jr., Professor Emeritus, Louisiana State University Law Scho

Article 1, Section 8, Clause 3

3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

During the Ratification Debates, the power of Congress under Clause 3 of Article I, Section 8 “To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes” was not controversial. It was generally recognized that the lack of such a power in the Articles of Confederation had damaged trade and finance among the states. Moreover, without a power to superintend commerce moving from state-to-state, the United States as a confederation was hampered in negotiating trade treaties. Other nations, notably Great Britain, had experienced the inability of the Confederation to prevent States from violating treaty obligations of the United States.

Since the adoption of the Constitution, the Commerce Clause has been much more controversial. Two early foundational cases in the Supreme Court, McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824, address the Commerce Clause in the context of the broad issues of constitutional structure. Later cases in the Nineteenth century, particularly following the Civil War, deal primarily with what is known as the “dormant commerce clause.” This doctrine involves the limits implied by the Constitution on the ability of the states to affect commerce, e.g. Cooley v. Board of Wardens (1852). Since the beginning of the 20^th Century, the Supreme Court’s jurisprudence concerning both Congress’s power under the Commerce Clause and the limits on the states’ powers to affect interstate commerce has undergone occasional, significant shifts.

The political divide over the regulation of commerce came to the fore soon after the creation of the government under the Constitution. During the Presidency of George Washington, Treasury Secretary Alexander Hamilton promoted federal legislation designed to develop an active commerce built around manufacturing. His most controversial success was creation of the Bank of the United States, a corporation chartered by the federal government. Hamilton and Secretary of State Thomas Jefferson squared off over the authority of Congress to create a corporation.

The Hamilton-Jefferson debate was not simply one over a policy. The two men had radically different ideas about the role of commerce in the United States. Jefferson’s vision of an agrarian America opposed Hamilton’s promotion of a commercial republic, driven by finance as epitomized in the Bank of the United States. Jefferson favored a more passive commerce which served mainly as a means for selling agricultural production, especially abroad. This debate involved a fundamental disagreement about the nature and the extent of the federal government’s powers under the Constitution.

Long before the Supreme Court had the opportunity of addressing the issue, these two great statesmen publicly debated the constitutionality of the Bank. Their positions rested on opposing views regarding interpretation of the Constitution. Jefferson focused on the fact that the Constitution contained no power to create a corporation. He employed “strict construction” of the Constitution to argue that neither the Commerce Clause nor the “Necessary and Proper” Clause authorized creation of the Bank. Jefferson’s position was that Congress could rely on the “Necessary and Proper” Clause only to do that which was “absolutely necessary” to carry out one of the listed powers. Hamilton, on the other hand, justified creation of the Bank as a legitimate exercise of the federal government’s enumerated powers. His position coincided with his own explanation of federal powers laid out in Federalist #23. That is to say, the position of Hamilton and The Federalist, later embodied in McCulloch v. Maryland (to be analyzed later in the section addressing the “Necessary and Proper” Clause), was that the Constitution gives Congress a limited number of powers, but places no limit on the powers actually given.

The term “strict construction,” as used by Jefferson, differs from what the public apparently understands to be the meaning of that term. By “strict construction,” Jefferson means a narrow construction of the words in the Constitution. According to Jefferson, for example, the “Necessary and Proper” Clause only authorizes that which is “absolutely” necessary. The Constitution, however, does not include the word “absolutely” to modify “necessary.”

Today, those who refer to “strict construction” do not necessarily adopt Jefferson’s narrow construction. Generally, those who use the term mean simply this: following the text of the Constitution. For them, the term “strict construction” is the opposite of a “liberal” interpretation,” which involves going beyond the words of the Constitution. Those, on the other hand, who support liberal construction justify doing so under the banner of “a living Constitution” which they contend must be “updated” by the Supreme Court. Justice Scalia, who opposes the notion of “the living Constitution,” surprises many when he says he is not a “strict constructionist.” Rather, the Justice describes himself both as an “Originalist” and a “textualist,” a methodology he explains as one which gives to the words of the Constitution the original meaning of the particular text.

Chief Justice Marshall’s opinion in Gibbons v. Ogden (often referred to as “the Steamboat case”) definitely rejected the Jeffersonian version of “strict construction.” Rather, Marshall’s reading of the Commerce Clause involved what today could best be described as “originalist” and “textualist.” The case addressed two issues: 1) whether, under the Commerce Clause, Congress had the power to enact legislation regulating river transportation; and 2) whether a New York statute granting a monopoly on steamboat traffic was constitutional.

On the first issue, the Court analyzed the text as follows: a) the federal law “regulates”; b) river transportation falls within the meaning of “commerce”; and c) the commerce, being between the states of New York and New Jersey is “among the states.” The federal statute, thus, fell within Congress’s power to “regulate Commerce … among the Several States.” The Court accordingly held that the federal law to be constitutional. On the second issue of the state monopoly which conflicted with the federal statute, the state statute had to give way under the Constitution’s Supremacy Clause.

The challenger to the New York monopoly argued the power over commerce given to Congress was an exclusive one which could not be exercised by the states. Gibbons found it unnecessary to decide that issue. A later Supreme Court opinion, Cooley v. Board of Wardens (1852), addressing primarily the power of a state to regulate matters related to a harbor, decided that the Commerce power was not exclusive to the federal government. Unfortunately, Cooley did not pay particular attention to the text of the Commerce Clause, which does not give Congress power to regulate all commerce, but “commerce among the States.” Instead, the Court took it upon itself to divide commerce between what is “national” and what is “local,” a distinction not grounded in the text. As a result of Cooley and later cases, the Court followed several theories to decide when a state could regulate commerce and when the federal government could do so.

In the course of things, the Court conflated the tests for what states could do and what the federal government could do. From cases involving state regulation, the Court looked to whether the law was “affecting” or “substantially affecting” interstate commerce. If what the state did was deemed to impede “interstate commerce,” then the statute was held to be unconstitutional as a violation of the “dormant commerce clause.” While the Court’s authority to imply a “dormant commerce clause” is itself debatable in terms of an originalist or textualist interpretation, transferring that text to the Congress’s power under the Commerce Clause clearly conflicts with an originalist or textualist interpretation of the clause, which nowhere mentions “interstate commerce.”

The Court’s departure from the text of the Commerce Clause has involved two wild swings. Prior to 1937, the Court declared certain pieces of federal legislation unconstitutional which it said did not actually regulate interstate commerce. In the view of the Court’s majority, the unconstitutional law had the purpose of regulating something else, e.g., manufacturing, and therefore fell within the powers of the states to regulate. The extreme case on this side was Hammer v. Dagenhart (1918), a case which held Congress could not enact a child-labor law. During the early years of the presidency of Franklin Roosevelt, the Court declared unconstitutional several key pieces of New Deal legislation which created a serious constitutional conflict between the Court and the two political branches.

In 1937, however, a majority of the Court began to uphold New Deal legislation on the theory that Congress’s purpose in enacting the law was to regulate some activity which “substantially affected,” and eventually simply “affected,” interstate commerce. The extreme example was Wickard v. Fillburn (1942), a case in which the Court upheld the power of the federal government to regulate how much wheat a farmer could grow. Even though some of the wheat was for self-consumption and specifically not for commerce, it was said to “affect interstate commerce” by with-holding wheat from the wheat market. Under this approach, Congress came to expect that the Court would uphold almost any legislation that simply claimed to regulate some activity which “affected interstate commerce.”

Since the mid-1990s, and for the first time since the mid-1930s, the Supreme Court has declared unconstitutional two acts of Congress which were purportedly passed pursuant to the Commerce Clause. U.S. v. Lopez (1995) held that Congress could not enact a law prohibiting possession of a weapon within a school-zone because the activity regulated was not commerce. In U.S. v. Morrison (2000), the Court declared unconstitutional the “Violence Against Women Act.” More recently, however, in Gonzales v. Raich (2005), the Court upheld the ability of the federal government to punish the growing at home of marijuana for personal medical purposes. In doing so, the Court re-affirmed Wickard and the notion that, under the “Necessary and Proper” Clause, Congress can regulate activities otherwise beyond its power in order effectively to regulate a nationwide market.

As of this writing, the Supreme Court has not addressed the Healthcare Reform legislation enacted in 2010. When it does so, the federal government will rely on Wickard and Raich and the states and individuals challenging the law will rely on Lopez and Morrison.

Dr. John S. Baker, Jr. is Professor Emeritus at Louisiana State University Law School.

March 22, 2011/6 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 02 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 02, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 02, Federalist No. 10, Federalist No. 30, Joerg W. Knipprath, The Articles of Confederation

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article 1, Section 8, Clause 2

2: To borrow Money on the credit of the United States;

Article I, Section 8, clause 2, confers on Congress the power to borrow money on the credit of the United States. Borrowing is simply a means of raising revenue. One can glimpse the importance and ubiquity of this tool of public finance by the fact that the framers placed it as the second power granted to the new Congress. Right after the powers to tax and spend. Those powers, along with the coining of money and punishing counterfeiting, constitute the federal revenue powers.

Borrowing on the credit of the United States was of vital concern during the Founding Era. The difficulty that the U.S. had to finance the Revolutionary War impressed men such as Alexander Hamilton and his mentor in financial matters, Robert Morris. It was the eventual success of John Adams and others in convincing the Dutch bankers to loosen their purse strings that opened access for Americans to international financial markets and contributed much to independence. Hamilton’s experience is reflected in Federalist 30, where he explains the importance of public credit to finance emergencies such as wars, and the connection between taxes (and, more broadly, responsible fiscal policies) and creditworthiness.

After the war, the economic plight of the United States worsened. The war debts of the states and the United States posed a long-term threat to the country’s economic health. That condition, many feared, would inevitably turn into a political threat to the republican systems in the states and to the Confederation. The fiscal and monetary policies of the states exacerbated the situation, as, in the words of James Madison’s in Federalist 10, a “rage for paper money, for an abolition of debts, for an equal division of property [and] for other improper [and] wicked projects” set in. During the debates on the Constitution, Rhode Island was often (and not always entirely fairly) set up as a paradigm of bad economic policies run amok. That is what happens when a state declines to show up for the debate, as Rhode Island opted to do.

But the problem was national and systemic, with the country locked in an apparent long-term cycle, or perhaps a spiral, of economic woe. One problem, in the eyes of many, was the absence of banks. The British had strongly disabled the formation of banks in the colonies, correctly seeing them as potential threats to British dominance. During the war, the Confederation’s Superintendent of Finance, Robert Morris, at the instigation of Alexander Hamilton, obtained a charter for the Bank of North America, an American prototype private national bank loosely patterned after the Bank of England. The charter was immediately suspect, since the Articles of Confederation did not allow Congress to charter banks or other corporations. As a precaution, the Bank eventually also obtained a state charter from Pennsylvania, a step that soon confirmed to Hamilton and other nationalists the folly of state control over public finance. The legislature of Pennsylvania, taking the position that it could, with impunity, take away vested property rights confirmed by a predecessor legislature, revoked the charter in 1785.

Though these constitutional weaknesses and political currents eventually caused the Bank of North America to fail as a national bank, the pattern was set. Indeed, Morris and Hamilton in their arguments to the Confederation Congress developed the constitutional arguments in favor of implied national powers that Hamilton would repeat in his push for the Bank of the United States in 1791, arguments the Supreme Court adopted in its landmark decision in McCulloch v. Maryland in 1819.

In the same vein, the economic and political arguments in favor of (and against) the Bank of North America would resonate in the political debates over the Bank of the United States and its successor until Andrew Jackson’s veto of the re-charter of the Second Bank of the United States in 1832. Those same arguments would be repeated in the debate over the establishment of the Federal Reserve system and continue today.

While the Federal Reserve remains controversial in many quarters, the original Hamiltonian program probably saved the Republic. Through the complex system Hamilton advanced as Secretary of the Treasury, the infirmities of the public debts of the United States and the states were eliminated by guaranteeing creditors payment on their previously depreciated securities. A crucial step to restore confidence was to have the United States assume the war debts of the states. The debt repayment was financed in part through an excise tax on whiskey that, while unpopular in certain quarters, was generally supported by the public. The Bank of the United States was the final piece in Hamilton’s mosaic and would serve as a depository for government funds. The use of those funds as well as the profit from private loans to other (state-chartered) banks and to large commercial borrowers would provide a return on their investment to private investors and to the government. The latter could use those profits to help repay the war debts and to furnish internal public infrastructure improvements (later reflected in Henry Clay’s “American system”). More significantly for the stability of public credit and the money supply was that the Bank could control the terms of credit it extended to borrowers. By selecting the interest rates for loans and having the option to demand repayment of loans in specie, it could temper the enthusiasm that state banks otherwise might have to overextend themselves through the issuance of bills of credit (paper bank notes).

As a result, the U.S. almost overnight gained access to the Amsterdam financial markets and, hence, to the world. Foreign capital flowed into the United States to help develop manufactures and commerce and put the United States on the road to a modern economy and prosperity. Hamilton was not naive. Despite what some of the agrarian anti-Bank theorists, such as Virginia’s Senator John Taylor of Caroline (a man who considered Jefferson and Madison sell-outs of the republican cause), claimed, neither the Bank nor Hamilton was bent on destroying American liberty. Hamilton feared a government-controlled bank, but thought that the private control of the bank would keep corrupt political forces at bay. Similarly, public and private tendencies towards credit bubbles would be constrained by two things. First, the interests of investors and directors in safety as well as profits would make them sufficiently conservative. Second, he proposed that repayment of long-term public debt be immediately secured through a commitment of designated revenue to pay interest and principal (“sinking fund”). Hamilton insisted that the Latin root of credit, credere (“to believe”), reflected the true source of credit. “States, like individuals, who observe their engagements, are respected and trusted: while the reverse is the fate of those, who pursue an opposite conduct.” While the states and the Confederation had abdicated their responsibilities and the country had suffered accordingly, Hamilton believed that his program lessened those dangers.

In practice, regrettably, Hamilton’s cautious and balanced approach has been cast aside. The only measure today appears to be how much can be borrowed on the increasingly suspect credit of the United States, rated as it is on the perceived ability of Americans to pay and the country’s status as the still safer haven for international funds than are the bonds of other countries. Debt is rolled over, not retired, as more debt is added.

I happened to come across a book written fewer than forty years ago. The author recounted in horror that the gross national debt (not the annual deficit) topped the stratospheric level of $450 billion. Even more scandalous to him was the explosion of the national debt from roughly $40 billion in 1940. Those are the kinds of numbers that today sound like unattainable frugality as a measure even of annual deficit, never mind as a measure of gross national debt. Even adjusted for inflation and population growth, the cumulative effect of the borrowing binge reflected in today’s debt is staggering compared to that time not so long ago.

Today’s questionable fiscal and monetary policies are not novel, of course. The Lincoln administration’s massive borrowing and its manipulation of the currency is one stark early example. FDR’s unilateral cancellation of gold clauses in public bonds (upheld by the Supreme Court in a stunning exercise of sophistry in Perry v. U.S. in 1935) and his comparatively massive, for that time, expansion of the debt, is another. But even those actions arguably were more defensible than today’s deficit borrowing. There is no massive war; the economic recession is not of the same degree; the borrowing is used to fund entitlements, not infrastructure. Worse, the deficit is not a matter of a few years, but, by now, of generations. It is structural. Worst of all, there is a lack of seriousness and urgency on the part of the political branches. As Hamilton feared, that foundation of sound credit, the “belief” and confidence of creditors, is unlikely to be maintained in the teeth of such profligacy.

March 21, 2011/4 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 08, Clause 01 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 08, Clause 01, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 01, Article I Section 08 Clause 03, Article I Section 09 Clause 4-6, Federalist No. 23, John S. Baker Jr. PhD

Guest Essayist: John S. Baker, Jr., the Dale E. Bennett Professor of Law at Louisiana State University

Article 1, Section 8, Clause 1
1: 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;

Article 1, Section 8 enumerates the powers of Congress. Listing those powers indicates that the federal government is one of limited powers. Unlike a unitary sovereign which has all the general powers of government, the federal government has only limited sovereignty. At the same time, the federal government possesses the fullness of any power actually given to it. As Federalist #23 makes plain, on those matters for which the Constitution has delegated responsibility to the federal government, i.e., national defense, foreign relations, regulation of national and foreign commerce, and preserving the public peace against insurrection, the federal government’s “powers ought to exist without limitation.” All of which is to say that the powers of the federal government are limited in number, not that a listed power itself is limited beyond what is stated in the text of the Constitution.

As a result, it becomes essential to determine the meaning of the text for each enumerated power. Improper interpretation through either expansion or contraction does damage to the legitimate role of the federal government. Giving the federal government a power not enumerated moves it closer to possessing full sovereignty. Limiting a given power enfeebles, at least partially, the ability of the federal government to carry out its legitimate responsibilities. Experience has also taught that the federal government can be enfeebled in the exercise of its legitimate powers because it expends resources illegitimately exercising powers not enumerated in the Constitution. The built-in efficiency of the Constitution’s federal design is that it gave to the federal government, and left to the states, those responsibilities which each level of government was best able to perform.

The federal government has in large measure been able to exercise non-enumerated power through misconstruction of the first clause in Article 1, Section 8. This clause illustrates the interpretive challenge. To understand the challenge, it is necessary closely to inspect the text of this clause which reads as follows: “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;”

Notice that after the word “Power” the word “To” is capitalized. Then notice that “to” before “pay” is not capitalized. Every enumerated power thereafter begins with “To,” without repeating “The Congress shall have the Power.” In other words, each clause beginning with a capitalized “To” states a separate, enumerated power. Nevertheless, books on Constitutional Law routinely treat this first clause as having two distinct powers: to tax and to spend. Textually, however, the clause states only one power which is the power to tax (in order) to pay debts and provide for the common defense and general welfare of the United States.

The Supreme Court has, at times, had to struggle with whether congressional legislation which purports to impose a tax is in fact a tax when its purpose appears to be regulatory, e.g., a tax on gambling which was illegal at the time. If the clause in fact grants a single power which ties taxes to paying debts and providing for the common defense and general welfare, then the issue changes. Rather than an issue of whether the tax is really a tax, the question becomes whether – even if it is a tax — it meets the purpose language of the text. If so read, regulatory taxes that do not raise revenue to pay government expenses would become constitutionally questionable. In other words, a reading of only the taxing language of the text – I suggest – has resulted in giving Congress regulatory powers it does not possess under a reading of the language as a single power.

Incidentally, this kind of careful attention to the text is not “strict” or “narrow” construction. It is textualism of the kind that Justice Scalia writes and practices. As he says, he is not a “strict constructionist.” He attempts to give words in the Constitution their full meaning without either narrowing or broadening their legitimate sense.

Another mischaracterization of this clause refers to it as “the General Welfare Clause.” If Congress had a power simply to legislate for the “general welfare,” there would be no need to list any other powers. Under such a construction of the Constitution, the federal government would in no way be a limited one. Few, if any, students of the Constitution, however, would openly claim Congress has such unlimited power. Nevertheless, the spending language in the clause – viewed as distinct from the taxing language –can be distorted to achieve the same unlimited power.

As discussed in United States v. Butler (1936), one of the few Supreme Court cases to address the spending language of the clause, the clause has been a matter of dispute nearly since the beginning when Madison and Hamilton disagreed over its interpretation. (The legislation addressed in Butler also involved a tax collected to fund the spending.) Madison contended that the power to tax and spend for the general welfare had to be tied to one of the other enumerated powers. Hamilton, and later Justice Joseph Story, disagreed. They said the power was a separate power, limited only by the requirement that its exercise be for “the general welfare.” Although Butler adopted the Hamilton-Story position, it declared the particular legislation unconstitutional.

If the discussion above regarding the use of “To” and “to” means that the clause does not contain two powers, it should also establish that the clause contains a power separate from those which follow, as Hamilton and Story contended. If then Madison was incorrect, does this clause create a power so broad that it makes the enumeration of other powers superfluous? Both Justice Story and the Butler opinion recognize that there must be some limits on spending for the general welfare, but Butler did not elaborate.

The Supreme Court has since ignored Butler’s notion that the clause contains any justiciable limits. A year after Butler, the Court upheld the parts of the Social Security Act dealing with unemployment compensation, Steward Machine Co. v. Davis (1937), and old-age benefits, Helvering v. Davis (1937). In Buckley v. Valeo (1976), the Court rejected a challenge to federal spending that financed presidential campaigns, saying “[i]t is for Congress to decide which expenditures will promote the general welfare.”

It may be that the term “general welfare” has acquired a meaning that, at least in Congress, extends well beyond the interpretation of Hamilton and Story. For Hamilton who promoted infrastructure spending on canals and bridges, the spending was not for local “pet projects” or so-called “earmarks.” Rather, such spending was to promote economic development generally; it benefitted more than a single state. Underlying the term “general welfare” seemed to be the idea that the federal government could spend on matters that generally benefitted the whole country. It was assumed not only that state governments would tax and spend on projects that benefitted their own state, but that they would not and should not tax and spend on projects to benefit other states. As with the original understanding of the Commerce Clause and other provisions in the Constitution, Congress was given the taxing and spending power for the general welfare in order to do for the states as a whole what none of them individually could do.

Congress’s idea of spending for the general welfare has often been used to “persuade” states to accept policy regulations which Congress lacks any power directly to impose. Congress achieves the regulatory end through conditioning receipt of the funds. Certain conditions attached to spending are not only reasonable, but required. Accordingly, the federal government ensures the proper use of funds by imposing accounting and reporting requirements and establishing other standards for spending the money. Congress, however, also manipulates conditions in what amounts to a form of “bait and switch;” it adds new conditions after states have become dependent on federal funding for such programs as highways and Medicaid. These new conditions are ones that a number of the states likely would not have accepted when the program began because they impose burdensome obligations or infringe on a state’s legislative powers. States, nevertheless, almost always accept the new conditions because they claim to have “no choice” — that is, except to drop the program or pay for it with state funds.

Rather than raise their own state taxes, with no diminution in federal taxes, states take the money because other states do and/or they get some return on the federal taxes paid by their citizens. Thus, the states at least acquiesce in – if not lobby for – high levels of federal spending with the accompanying federal taxes and/or deficits to support that spending. With almost all states participating in those spending programs directed to the states, the Congress can claim that those programs address the “general welfare.”

States have not been successful before the Supreme Court in claiming Congress’s imposition of new conditions is unconstitutional because they “coerce” states which have “no choice” other than to agree to the new conditions. In South Carolina v. Dole (1987), the Court rejected a constitutional challenge to Congress’s direction that the Transportation Department withhold 5% of the highway funds due to a state if the state did not prohibit persons under the age of 21 from purchasing or possessing alcoholic beverages. Congress certainly had no power under which it could directly establish a national drinking age. The Constitution left such police power issues with the states. Nevertheless, the Court determined, inter alia, that drunk driving was a “national concern.” Of course, it was not a concern that each state was incapable of addressing individually. Justice O’Connor argued in dissent that the condition was an unconstitutional infringement on state powers and noted that the Court’s discussion of federal spending in United States v. Butler (as distinct from other reasoning in the case) remains valid.

The last part of the clause (“all Duties, Imposts and Excises shall be uniform throughout the United States;”) guarantees that one region of the country having more voting power in Congress cannot use that power to disadvantage other states economically. This provision ties in with the prohibition on taxing exports (Art. 1, Sect. 9, cl. 5) and the power over commerce among the states and with foreign nations (Art. 1, Sect. 8, cl. 3). It represents one example of how the Constitution, as finally drafted, coordinates its different parts into a comprehensive and consistent plan of government.

Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University.

March 17, 2011/19 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 07, Clause 3 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 07, Clause 3, Kyle Scott, Ph.D. 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 07 Clause 3, Connecticut Compromise, Constitutional Amendment XVII, Constitutional Amendment XVII, Kyle Scott PhD

Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

Article I, Section 7, Clause 3

3: 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.

Within a single clause we see on display one of the most important components of the U.S. Constitution: a system of checks and balances. Within Article 1, Section 7, Clause 3 we see that not only must a bill pass through both houses of the bicameral legislature, but it must also be signed by the President, who resides in the executive branch, in order for it to become law.

The bicameral legislature is the result of what would become known as the Connecticut Compromise. At the Constitutional Convention of 1787 the large states proposed a bicameral legislature where the states would be represented in the national assembly in proportion to their state’s population. Therefore, a state like Virginia would have more representatives than a small state like New Jersey. The small states countered with what would become known as the New Jersey Plan. In this plan there was to be a unicameral legislature in which the states would be represented equally. Roger Sherman from Connecticut proposed a bicameral legislature in which the membership in the lower house would be determined by state population and in the upper house each state would be represented equally. There were some modifications before it was put into the Constitution, but for the most part the Connecticut Compromise created our current legislative structure in which each state is represented in the House of Representatives in proportion to the state’s population and each state is represented by two senators in the upper house, or Senate. In order to balance the interests of the small states and the large states, a bill must pass through both houses in identical form before it can be sent to the President for his signature or veto.

By instituting a system of checks and balances the Constitution introduces delay into the process in order stymie reactionary policies by allowing various interests to voice their support or opposition. This assuaged the concerns of those who feared the ability of the many to lead the country haphazardly down a path of ever changing public sentiment, and those who feared the capricious decision making of a monarchy or aristocracy that would strip the people of their liberty. Therefore, the Connecticut Compromise was not just a compromise between big states and small states, but between those who favored more democracy and those who favored less. The House was intended to be representative of the people’s interests—as members of this chamber were elected directly by the people—and the Senate was intended to be representative of the entire state as determined by the state’s political elite—as Senators were to be chosen by the state legislature, for it was not until the ratification of the 17^th Amendment in 1913 that Senators were directly elected by the people.

Once a bill satisfied the concerns of the people and the elite, and those from large states and small states, it was sent to the President who was supposed to represent the view of the whole nation. Thus, it was yet another check introduced into the system. If the bill ran against the nation’s best interests the President was supposed to veto it. But, the President could not single-handedly stop legislation as Congress is given the ability to override a veto by a 2/3’s vote in each chamber. In granting veto override authority to Congress the Framer’s of the Constitution institutionalized distrust of a single executive, surely a by-product of their experience under King George III.

When a system of checks and balances is effectively implemented it is able to prevent the interests of some overwhelming the interests of others in a way that would threaten safety and liberty. When a group has the ability to protect its interests against the competing interests of another group, a compromise must be reached between the competing groups in order for the policy process to move forward. The compromise produces moderate policy, and change that is slow and incremental. The animating characteristic of this program is self-protection, which itself is spawned from the emphasis the Framer’s placed on liberty. We cannot entrust others to protect our liberty, but we must do it ourselves by being engaged, informed, and responsible in our political and private lives. It is our liberty that gives us the ability to do these things, and it is our liberty we protect when we do. Because liberty is an instrumental and intrinsic value, there is a symbiotic relationship between our political involvement and our liberty that the Constitution seeks to institutionalize.

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 17^th. 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

March 16, 2011/6 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 07, Clause 2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 07, Clause 2, George Schrader 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 07 Clause 2, Federalist No. 47, George Schrader

Guest Essayist: George Schrader, Student of Political Science at Hillsdale College

Article 1, Section 7, Clause 2

2: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.

The veto power contained in Article One, Section Seven, Paragraph Two of the Constitution is often trivialized as being a mere procedural formality. While the Preamble provides sweeping statements of the values of the document, and the Bill of Rights proclaims rights every citizen holds dear, the veto power is for many no more than a step in the lawmaking process, devoid of any deeper constitutional significance. Looking below the surface, however, reveals an important part of the philosophy and structure of the Constitution in this one procedural step.

Understanding the veto power means understanding the Founders’ idea of the separation of powers. Born out of the Western European Enlightenment, this concept theorizes that government has very distinct powers, namely, the executive, legislative, and judicial. In the American Constitution, an independent governmental institution was created for each of these powers. Congress is granted the sole ability to legislate, the President the sole authority to execute the laws, and the courts the sole power to judge according to those laws. This represents a revolution in government structure, as most previous governments attempted to wed two or more of these powers into a single entity, often resulting in tyranny. By separating powers, the Founders hoped to dilute the powers of government and prevent any individual or branch from seizing control.

This is not to say, however, that the Founders believed that simply assigning each branch of government one political power would solve the problem of tyranny. James Madison cringed at the idea of granting all of any power, be it legislative, executive, or judicial, to any one body. He explains in Federalist Forty-Seven that the concentration of political power in any branch, “may justly be pronounced the very definition of tyranny.” The Founders were therefore left with a dilemma. Failure to separate the powers of government between several hands would quickly lead to the collapse of the government into tyranny. However, allowing each branch to be miniature tyrants within their own power did not provide an acceptable alternative. The resulting compromise is quite ingenious, and is demonstrated perfectly by the veto power.

In an effort to mitigate the problem of concentrating power of any sort in one set of hands, the Founders chose to take small pieces of each general power of government, and entrust it to a branch whose primary purpose was not the execution of that power. This is perhaps best explained through the example of the veto power. Making law is a legislative function, and as such is held by Congress. The veto power puts the president, the chief officer of the executive power, in the law-making process, effectively rendering him a form of legislator. While he cannot constitutionally perform other legislative functions, such as propose laws or control revenue flow, his vote is still an integral part of any law’s creation. While just one example, the veto power illustrates how the Founder’s separation and redistribution of power work in practice.

Having considered the rationale of mixing government’s power, the question remains as to why this should prevent tyranny as the Founders intended. The answer comes in revisiting the idea of concentrated power. If tyranny grows out of too much power being in one place, two solutions seem likely. First, one could take away an essential power of government, such as the ability to make law, therefore rendering the government all but useless. Such a solution is akin to anarchy. The other option, and the one chosen by the Founders, is to spread powers out so that any one entity would find it impossible to gain sole control over any aspect of government. No matter how tyrannical the legislature’s intent, it cannot constitutionally remove the president’s role in the law-making process with his veto. While certainly not foolproof, this system of dividing power provides an important constitutional check on the growth of governmental power.

While certainly not the most glamorous aspect of constitutional philosophy, the presidential veto power provides in miniature a view into the Founders’ hopes for governmental balance. By separating power generally between three branches, and separating that power again through these exceptions, the Founders provided an institutional protection for the freedoms they hoped to preserve.

George Schrader is a student of political science and German at Hillsdale College.

March 16, 2011/4 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 07, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 07, Clause 1, Joerg W. Knipprath 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 07 Clause 1, Joerg W. Knipprath

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article I, Section 7, Clause 1

1: 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.

Article I, Section 7, addresses the process by which legislation is enacted. Before the general process itself is laid out, clause 1 of that section directs that all bills for raising revenue shall originate in the House of Representatives. The Senate is given the power to respond with amendments. Therein, as it turns out, lies a fatal flaw. The House has also frequently asserted that this provision applies as well to appropriations measures. Though not entirely persuasive based on the text, as a practical matter, most appropriations bills originate in the House.

There was virtually no discussion about this clause at the Philadelphia Convention. How could this be? The reason is that the belief that the power of taxation lies with the people was a key component of American republicanism. That article of faith, no, self-evident truth, was the culmination of centuries of evolution of English constitutional doctrine that meshed well with American colonial practice and found expression in such Revolutionary War-era slogans as “no taxation without representation.” The House of Representatives is the only institution of the general government for which the original Constitution made explicit provision of popular election. That fact, and the limited term of office and the frequent recourse to elections for members, made the House the natural repository of republican sentiment in the Framers’ view. There was no need for extensive debate over the (to them) obvious.

The triumph of Parliament over King on the issue of taxation was a process centuries in evolution. The King had revenues from royal properties and various prerogatives, such as assessing import duties. Beyond that, general taxes of persons or wealth were seen as “gifts” from the commons to the crown. Otherwise, taxes would be nothing but exactions against will, backed only by superior force. There would be little difference, then, between such an exaction and one procured by a highwayman. To the English, taxes were dangerous devices by which a person’s freedom was readily destroyed as he was reduced to penury.

But government still needed money, especially during war. The fiction used to get around the obstacles of the “taxes-as-gifts” theory was that the commons, represented in Parliament, could vote to assess themselves and offer such “gifts” to the crown. While this obviously did not please those who did not agree to the tax, it did provide a political tool to limit royal fiscal voraciousness that other monarchies of the time lacked. Once Parliament separated into Commons and Lords, this power fell to the former. By 1407, the Commons had sole power to originate money bills. Attempts by the Lords to have at least an amending or revisory power were rejected. By the end of the Glorious Revolution nearly three centuries later, not only did the House of Commons have plenary power over revenue bills, but it had also won the power to direct the appropriation thereof.

The colonies and, later, the states followed this model. The colonial assemblies saw the enactment of local revenue bills as their prerogative because of their connection to the people through a comparatively broad electoral franchise in many colonies. Pre-Revolutionary War rhetoric, from John Dickinson’s “Letters from a Farmer in Pennsylvania” to the Stamp Act Congress Resolutions echoed this unquestioned dogma of the, frankly rather lightly-taxed, Americans. A similar sentiment prevailed, once the states declared independence. For example, the language of Article I, Section 7, cl. 1, appears almost verbatim in the Massachusetts constitution of 1780 (except for the cosmetic distinction that the state used “money bills” instead of “bills for raising revenue”).

Why, then, are taxes today as high as they are? Historical experience (rather than dogma) provides an insight. In England, as well as in America, the application of constitutional principle resulted in legislatively dominant groups engaging in the entirely understandable practice of having someone other than themselves make these “gifts.” In England, when the House of Commons was controlled by the landed gentry, taxes tended to fall on activities of commerce. When upper and upper-middle class commercial interests came to predominate, they sought to impose consumption taxes (excises) on a broad variety of items used by the (unrepresented) middle and lower economic strata. In the colonies and states, legislatures controlled by middle-class farmers and artisans saw great sense in wealth taxes that targeted the upper-middle and upper classes who were repeatedly being exhorted to pay their fair share based on their greater ability to do so. Thus operates human nature.

Taxation as a form of giving (by the people), not taking (by the government), is an idea that seems to have little currency in certain quarters. It often seems today that those in government, including our representatives, believe that the money is theirs, while the citizenry is at best a collection of tenants at sufferance of their own earnings and wealth. Thus, it comes as little surprise that the technicalities of Article I, Section 7, cl. 1, have not proven to be bulwarks against excessive taxes. The dynamic of the political system for decades has been to extract more and more money from some to fund more and more desires of others. The House still, on occasion, guards its formal pre-eminence in money matters against the Senate and the President, though the current House will soon reveal the extent of its substantive effectiveness in curtailing a budget dominated by gargantuan programs of non-discretionary spending.

As well, there is little in the text to prevent a determined Senate from taking a House bill and “amending” it by deleting all language after “Be It Hereby Enacted” from a House bill. That has happened repeatedly, with Supreme Court approval of the practice over at least the last century. More recent examples of this include a Reagan-era tax law and the 2008 TARP bill. Most infamously, the “reconciliation” process involving ObamaCare began as a Senate gutting of a House revenue bill. The lesson to be remembered yet again is that the carefully drawn balance in the Constitution ultimately depends on the willingness of the citizenry to hold the government to its obligations.

March 14, 2011/9 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 06, Clause 2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 06, Clause 2, Steven H. Aden 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 06 Clause 2, Steven H. Aden

Guest Essayist: Steven H. Aden, Senior Counsel, Alliance Defense Fund

Article I, Section 6, Clause 2

2: 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.

Philander Knox, Dick Nixon and the Saxbe Fix. For some quizzical reason, “X” marks the spot in the constitutional text where a tempest of teapot proportions persistently brews when Section 6 nixes Executive picks.

The pedestrian second clause of Section 6 provides two obscure but important checks on the power of both the Executive and the Legislative Branch, colloquially known as the “Emoluments Clause” and the “Incompatibility Clause,” respectively. The second clause is as crystalline in meaning as a constitutional text can be, and has engendered virtually no historical dispute, except occasional quibbles over whether a trusteeship or a military commission constituted an “Office” for purposes of the clause. President George Washington and other Founders regarded the Incompatability Clause as an unbreachable bar to cabinet service. Washington withdrew his nomination of William Patterson to the Supreme Court because Patterson had been a senator when the office of Associate Justice was created and the Senate term Patterson had been elected for had not expired. (Washington got his man nonetheless by subsequently re-nominating Patterson to the Court after his term expired.) Since then, the Incompatibility Clause has been largely respected, with an occasional deviation.

The Emoluments Clause, on the other hand, has been much abused and misused. The Clause, which applies when Congress has voted to raise the salary or benefits (“emoluments”) attending the cabinet position during the nominated member’s tenure in Congress, was regarded by James Madison and others as an important check on potential collusion over cabinet appointments between the two “most dangerous” branches. The clause would prevent the President from creating new cabinet positions for sitting members of Congress, thereby inhibiting vote-buying, and prevent Congress from raising the salary of a newly appointed cabinet minister as he or she is on the way out the door, inhibiting graft. The Emoluments Clause is a “pox on both their houses,” in contrast to most of the other constitutional checks and balances that operate on a single branch of the federal government.

Philander C. Knox enters the story about a century ago, when President William Howard Taft in 1909 nominated Senator Knox to the post of Secretary of State. But Knox had been elected to a Senate term that would not expire until 1911, and during his term Congress had voted to increase the salary of cabinet officers to $12,000 annually. After much deliberation, Congress voted to revert the salary of the Secretary of State to $8,000, and Knox took office.

What could have been known as the “Knox Fix” (if that era had been as inclined to Seussian alliteratives as ours is) was employed by the administration of President Richard Nixon in 1973 in support of the nomination of Senator William Saxbe as Attorney General. Nixon’s Acting Solicitor General, Robert Bork, defended the proposed “Saxbe fix” before Congress by arguing that the spirit of the Emoluments Clause would be met, if not the letter:

The purpose of the constitutional provision is clearly met if the salary of an office is lowered after having been raised during the Senator’s or Representative’s term of office…. So, with the bill lowering the salary of the office of Attorney General [from $60,000] to that level, $35,000, which it stood when Senator Saxbe became a Senator, you would have a situation where the rationale of the constitutional provision was met.[1]

This rather cynical interpretation of the Emoluments Clause has become au courant among Beltway sophisticates, and it is routinely invoked when the clause pops up like an uninvited uncle at Thanksgiving. President William Clinton, for example, invoked The Fix to appoint Senator Lloyd Bentsen as Treasury Secretary. Constitutional law professor Michael Stokes Paulsen explains how the “purpose” of the clause has vaulted over the actual rule it imposes:

By repealing the pay increase, the statute ensures that Lloyd Bentsen is not the personal financial beneficiary of any increase in emoluments. But the statute cannot repeal history; it cannot undo the fact that the emoluments of the office had been “encreased” during the period for which Bentsen had been elected to the Senate. And that is the constitutional rule provided by the Emoluments Clause. Congress can no more legislate away a violation of that rule than it can by statute raise the chronological age of a thirty-two-year-old in order to make him eligible to serve as President. Bentsen’s appointment is unconstitutional regardless of the subsequent legislative “fix.”[2]

Thus, as with many of those pesky “minor” constitutional provisions, the Emoluments Clause has been “more honour’d in the breach than the observance.”[3] Musing about the apparent flexibility of this provision and similar castaways of “our Living Constitution,” Professor Michael Stokes Paulsen muses, “What gives? The answer is that the Constitution gives, at least most of the time, when the provision involved is one that people today regard as a nuisance and where the likelihood appears small that a lawsuit will be brought against the violators.”[4] Still, one has to say that the clause has had a salutary effect on the separation of presidential and legislative powers by hitting those who breach it where it hurts career politicians the most – right in their wallets, in the form of a pay cut. Its letter may be dead, but its spirit is still kicking.

Steven H. Aden is the Senior Counsel for the Alliance Defense Fund, http://www.alliancedefensefund.org/ .

[1] Letter from President Richard M. Nixon to Senator Gale McGee (Nov. 8, 1973), in To Insure that the Compensation and Other Emoluments Attached to the Office of Att’y Gen. Are Those Which Were in Effect on January 1st, 1969, Hearings on S. 26733 Before the Senate Comm. on Post Office and Civil Service, 93rd Cong., 1st Sess. 6 (1973) id. at 9 (testimony of Acting Attorney General Robert H. Bork).

[2] Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907, at 909 (April 1994). Professor Paulsen observes that the “other” Emoluments Clause, in Article I, Section 9, provides that “no Person holding any Office of Profit or Trust under [the United States] 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,” thus demonstrating that “where the framers intended that a disability be removable by subsequent legislation, they so specified….” Id., at 909 n.6.

[3] William Shakespeare, Hamlet Act I Scene 4.

[4] Paulsen, supra, n.2, at 907-08. In fact lawsuits have been brought to enforce the Emoluments Clause, notably challenging President Jimmy Carter’s nomination of Abner Mikva to the D.C. Circuit Court of Appeals and President Obama’s nomination of Senator Hillary Clinton as Secretary of State, but the courts have dismissed those bringing the challenges as lacking standing – the legal authority to bring a court suit.

March 14, 2011/8 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 06, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 06, Clause 1, William C. Duncan 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 06 Clause 1, Constitutional Amendment XXVII, The Articles of Confederation, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Article 1, Section 6, Clause 1
1: 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.6 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.

Under the Articles of Confederation, members of Congress were paid by the State they represented. In the Philadelphia Convention, there was some support for continuing this practice but the delegates opted instead to have national legislators receive uniform pay from the federal government.

In the ratification debate, the example of Rhode Island was invoked because it had failed to pay its representative in the Confederation Congress, thus effectively recalling them from service and leaving the state unrepresented. Under the Confederation, this was perhaps not too risky since the national government had so little power that it was unlikely to do much damage to the state’s interests. Under the new, more robust, national government created by the Constitution, lack of representation would be more impactful. The very real possibility that states would be added from the Ohio territory; states which would likely be poor and unable to pay legislators much; was also a relevant consideration in determining to pay members of Congress from the public fisc.

In both cases, the plan of representation on the national government might be frustrated if states and citizens were left unrepresented for lack of state money to pay salaries or unwillingness to appropriate it. (Although, on the other hand, there might be some value in having less representation from states that have bankrupted themselves through financial mismanagement.)

The other salient question for the Constitutional Convention was what the pay would be. An early draft suggested “liberal” compensation and Benjamin Franklin proposed “moderate.” The final decision was to proceed without a modifier. Congress could decide its own salary, though with the understanding that constituents would be watching. The check provided by voters was later strengthened by the adoption of the 27th Amendment which prevented any Congressional pay raise from going into effect before an intervening election allowed voters to weigh in on the vote for the raise.

The second part of the clause is referred to as the “Speech or Debate Clause.” It has an honorable pedigree stretching back at least to the English Bill of Rights of 1689. The Articles of Confederation (article 5) contained a similar provision. The clause “provides legislators with absolute immunity for their legislative activities relieving them from defending those actions in court.” United States v. Jefferson, 546 F.3d 300 (4th Cir. 2008).

The concern here is that the legislative branch of the new national government be protected from attempts to either intimidate or punish members for their expression in Congress. Thus, for instance, members cannot be sued for libel based on comments they make in debates in the House and Senate and are not subject to prosecution for those statements. This ensures not only a robust debate but the independence of the legislative branch.

The controversies related to this Clause have typically involved its scope. When a Senator placed classified government documents (the Pentagon Papers) into the public record and was reportedly trying to arrange private publication of the papers, a grand jury issued a subpoena to a member of the Senator’s staff. In the resulting case, the U.S. Supreme Court said the actions of Congressional aides in pursuance of duties that would be protected by the Clause if done by members of Congress were also protected. The court did not prevent the grand jury from investigating the private publication question since such was outside the scope of legislative duties. See Gravel v. United States, 408 U.S. 66 (1972).

Criminal conduct, such as corruption or accepting bribes is not legislative work (one can only hope) and is also not protected by the Clause. See United States v. Brewster, 408 U.S. 501 (1972). In another case, the Supreme Court said a defamation lawsuit based on statements in a Senator’s press release was not protected by the Clause. See Hutchinson v. Proxmire, 443 U.S. 111 (1979).

On the other hand, legislators are protected while “speaking on the House or Senate floor, introducing and voting on bills and resolutions, preparing and submitting committee reports, acting at committee meetings and hearings, and conducting investigations and issuing subpoenas.” Tod B. Tatelman, “The Speech of Debate Clause: Recent Developments,” CRS Report for Congress (2007) pp.2-3 at http://www.fas.org/sgp/crs/misc/RL33668.pdf.

March 10, 2011/7 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 05, Clause 3-4 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 05, Clause 3-4, Scot Faulkner 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 05 Clause 3-4, Article II Section 3, Constitutional Amendment XX, Constitutional Amendment XX, Scot Faulkner, The Articles of Confederation

Guest Essayist: Scot Faulkner, Executive Director, The Dreyfuss Initiative on Civics

Article 1, Section 5, Clause 3

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.

Documenting public processes have been part of governing since the rise of early civilizations. From the Sumerians in 2500 BC, to ancient Egypt and Babylon, governments have kept journals of their actions and public meetings.

The Founding Fathers knew the importance of maintaining a Journal of Proceedings from the English House of Commons. James Wilson, a member of the Committee on Detail which compiled the provisions of the draft Constitution, was a follower of the great British parliamentary scholar Sir William Blackstone. He quoted Blackstone’s Oxford 1756 lectures, which underscored the importance of a public record for holding officials accountable, “In the House of Commons, the conduct of every member is subject to the future censure of his constituents, and therefore should be openly submitted to their inspection.”

The Constitution’s “Journal of Proceedings” wording flows from the Articles of Confederation. In March 1781 the Continental Congress approved the following provision: “…and shall publish the Journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military operations, as in their judgment require secrecy; and the yeas and nays of the delegates of each state on any question shall be entered on the Journal, when it is desired by any delegate; and the delegates of a state, or any of them, at his or their request shall be furnished with a transcript of the said Journal, except such parts as are above excepted, to lay before the legislatures of the several states.”

But what is the Journal? Every day the Congress approves the “Journal” of the previous session. This is the official outline of actions taken during the previous meeting of each Chamber, like a set of minutes. It is codified in Section 49 of Thomas Jefferson’s 1812 Parliamentary Manual that governs Congressional operations. Members of Congress do not approve the Congressional Record. That transcript of House and Senate proceedings has a colorful history.

The transcribing of Congressional debate was begun by private publishers. House and Senate proceedings, roll calls, debates, and other records were recorded and published in The Debates and Proceedings in the Congress of the United States (1789–1824), the Register of Debates in Congress (1824–1837), and the Congressional Globe (1833–1873).

During the 36^th Congress [December 5, 1859 to March 3, 1861] it was decided that federal funds should be used for transcribing Congressional proceedings and that the Government Printing Office should publish the verbatim record. The Congressional Globe was contracted to provide stenographers in the House and Senate Chambers. In 1873, the Globe’s contract was not renewed, and the Congressional Record was born. The Clerk of the House and the Secretary of the Senate now oversee documenting and transcribing the verbatim proceedings of their respective chambers.

The Congressional Record is still not an accurate verbatim transcript of the proceedings and debate for each Chamber. Members routinely insert remarks and documents after the fact. While these “revised and extended remarks” help Members explain their actions, they are considered “secondary authorities” when it comes to determining legislative intent. Secondary authorities are generally afforded less weight than the actual texts of primary authority during Judicial review.

The chronicling of Congress has come almost full circle. While the Congressional Record remains the official transcript of proceedings, CSPAN, a nonprofit private entity, provides live coverage of each Chamber. The cameras are owned and maintained by the Architect of the Capitol, while their operations and broadcasts are operated by staffs of the Chief Administrative Officer in the House and the Secretary of the Senate. CSPAN receives the signal and airs it on its various cable television channels. Live House broadcasting began on March 19, 1979 while Senate coverage commenced on June 2, 1986.

Article 1, Section 5, Clause 4

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 Constitutional Convention of 1787 made sure the two Congressional chambers had equity when it came of the operations of the Legislative Branch. Neither the House nor the Senate may adjourn for more than three days (excluding Saturdays, Sundays, and holidays) without the concurrence of the other Chamber. The formal end of a Congress is when the Legislative Branch adjourns “Sine Die” (from the Latin “without day”) meaning “without assigning a day for a further meeting or hearing”. The Constitution [Article 2, Section 3] also grants the President the authority to summon the Congress for a special session if circumstances require. The Twentieth Amendment to the Constitution also sets a formal start and end time for each Congress.

These various provisions have led to numerous unintended consequences.

One of the first instances was when the Southern states seceded from the Union. They deprived the sitting Congress of a quorum. In order to continue governing, President Abraham Lincoln issued the very first Presidential Order on April 15, 1861, Executive Order 1.

The most complex consequence of Clause 4 relates to when Congress takes a recess and when it adjourns. A recess is a temporary halt to activity on the floor. Everything stops, and when the recess ends, the chamber resumes from where it left off. A recess might last 10 minutes or it might last weeks. The length of time does not matter. An adjournment is a formal end to business in the chamber, and upon return the chamber does not resume from where it left off. Just like a recess an adjournment can be for one minute or for three weeks. However, unlike a recess, an adjournment creates a new legislative day (this is more relevant to Senate proceedings).

Certain things happen, under the standing rules of the House and Senate, precisely because it is a new legislative day. Much of it is routine business: the reading of the previous day’s journal, filing of reports, delivery of messages from the House, etc., but there are also consequential things. In the Senate, during the first two hours of each new legislative day, motions to proceed are not debatable, and therefore cannot be filibustered.

Any formal break in Legislative Branch activity also opens the door for a President to take certain actions. This includes making appointments which require Senate confirmation, and “pocket vetoing” legislation. A pocket veto means that the Congress cannot override the veto because it is not in session. An adjournment of the Legislative Branch also allows the President to reconvene Congress for a specific action [Article 2, Section 3]. Congressional leaders have devised ways to avoid inadvertently unleashing Presidential activism.

The Congress can take a break from legislative activity, and still avoid a formal recess or adjournment, by meeting in a “pro forma” session. Pro forma means “for the sake of formality”. In recent years pro forma sessions have prevented Presidents from making recess appointments, and in the case of President George W. Bush in 2008, deprived him calling a special session to reauthorize the Protect America Act and the Foreign Intelligence Surveillance Act.

As long as a Member convenes either the House or Senate to formally open and close a session there is no recess or adjournment. Members sometimes compete to see how fast they can conduct a pro forma session. The record is currently held by Senate Jack Reed of Rhode Island who completed the task in 12 seconds.

Scot Faulkner served as the Chief Administrative Officer of the U.S. House of Representatives. He earned a Masters in Public Administration from American University, and B.A. in Government from Lawrence University. He is the Executive Director of The Dreyfuss Initiative on civics www.TheDreyfussInitiative.org

March 10, 2011/11 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 05, Clause 2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 05, Clause 2, Paul S. Teller, Ph.D. 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 05 Clause 2, Paul S. Teller PhD

Guest Essayist: Paul S. Teller, Ph.D., Executive Director of the Republican Study Committee in the U.S. House of Representatives

Article 1, Section 5, Clause 2
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.

Article 1, Section 5, Clause 2 of the U.S. Constitution states that, “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.” This seems like a fairly straightforward clause, but it has ramifications that many folks often overlook.

The heart of this clause is with its first phrase, regarding each house of Congress determining its own rules. The most obvious implication (and purpose) of this clause is the prevention of one house from changing the culture of the other house. For example, it is common knowledge in Washington that the House is the faster, more reactive legislative body, and the Senate is the slower, more deliberative body. This difference was deliberately designed by the Founders and pervades even the pace of people’s strides in the halls of Congress today. Walk from a House office building through the Capitol and into a Senate office building, and you’ll feel as if you’ve just stepped from air into water into jelly.

Article 1, Section 5, Clause 2 prevents one house from making cultural changes to the other—from turning air into jelly or vice versa. For example, the Senate cannot force the House to spend four legislative days on one bill. Similarly, the House cannot force the Senate to abandon the filibuster. Thus, this clause of the Constitution has contributed to the relative stability of the culture of the two chambers over the centuries.

But perhaps more notably still, Article I, Section 5, Clause 2 also prevents a current Congress (and a current President, for that matter) from binding the procedural actions of a future Congress. This point is critical to understanding legislating in the American political system. That is, no matter what any Congress and President enact into law, the fact that each house of Congress sets its own rules will ALWAYS trump any law (because a provision in the Constitution always trumps a statute).

For example, say Congress passes and the President signs a law that says that all appropriations bills must be considered in Congress under an “open rule” that allows any germane amendment to be offered at any time without any pre-filing requirement. But then the following year, the House brings an appropriations bill to the floor under a “closed rule” allowing absolutely no amendments at all. Which rule wins? The closed rule wins, under Article I, Section 5, Clause 2, since the House is constitutionally guaranteed the right to set the rules of its own proceedings, irrespective of what any law, regulation, or common practice would supposedly require or suggest.

One big downside to this clause, however, is that it also guarantees the right of each house of Congress to ignore its own rules. For example, at the start of every Congress, the House enacts a revised rules package—a set of rules that will guide the consideration of legislation for the subsequent two years. However, it is common practice for the House, when considering “major” legislation, to enact “special rules” that provide for the consideration of just that major bill. Very often, a special rule states that some of the underlying House rules either do not apply or that a Member may not cite them on the floor to claim that a violation has occurred (“make a point of order”). Furthermore, the House frequently considers non-controversial legislation under a procedure called “suspension of the rules”—literally a setting aside of the underlying House rules in exchange for limited debate, a prohibition on amendments, and a two-thirds vote threshold required for passage.

Can anyone do anything about such avoidance of the rules? Not at all. There is neither check nor balance against either house of Congress ignoring its own rules and setting up new ones any time it wants to—either temporarily or permanently. Says who? Says Article I, Section 5, Clause 2.

Paul Teller is the Executive Director of the Republican Study Committee (RSC) , where 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.”

March 9, 2011/12 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 05, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 05, Clause 1, William C. Duncan 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 05 Clause 1, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Article 1, Section 5, Clause 1
1: 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.

Article I, section 5, clause 1 of the Constitution gives to the branches of the Legislature power to “judge” or determine whether an election of one of its members is valid and whether the person elected meets the Constitutional requirements for service. Without such a check, Joseph Story explained, “any intruder, or a usurper, might claim a seat, and thus trample upon the rights and privileges, and liberties of the people.” Joseph Story, 2 Commentaries on the Constitution §831 (1833).

The U.S. Supreme Court discussed this provision in a case challenging the House of Representatives’ decision to exclude Adam Clayton Powell, Jr. over allegations of corruption. In that case, the Court ruled the House could not exclude Representative Powell unless he did not meet one of the qualifications in the Constitution (age, citizenship, etc.). In other words, his exclusion was unconstitutional because the House had added a qualification not in the Constitution. See Powell v. McCormack, 395 U.S. 486 (1969). As stated in a later case: “The decision as to whether a Member satisfied these qualifications [those in Article I, section 2] was placed with the House, but the decision as to what these qualifications consisted of was not.” Nixon v. United States, 506 U.S. 224, 237 (1993).

The next part of the clause deals with the quorum required to do business. The challenge here was to ensure that the requirement was not too much or too little but just right.

In the Constitutional Convention, Oliver Ellsworth, succinctly made the case that a majority should be required for a quorum: “It would be a pleasing ground of confidence to the people that no law or burden could be imposed on them, by a few men.” Philip B. Kurland & Ralph Lerner, editors, 2 The Founders Constitution 289 (1987); see also John Bryan Williams, “How to Survive a Terrorist Attack: The Constitution’s Majority Quorum Requirement and the Continuity of Congress”48 William & Mary Law Review 102 (2006).

On the other hand, a larger requirement might have had advantages but would have become unworkable. In Federalist 58, James Madison notes this and adds that if there were a more stringent requirement “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.” This would happen because the minority could keep anything from being done.

As Congress now operates, the question of a quorum is not usually considered unless a member requests a quorum call, usually as a way of delaying the business of the body.

One very real threat to the quorum requirement would come if a number of members decided to flee or otherwise avoid attending the deliberations of Congress so as to prevent a quorum and keep business from being done. Of course this is occurring right now as members of the Wisconsin Senate have fled the state in order to prevent a quorum and thus the passage of legislation with which they disagree.

This behavior was anathema to the Framers. James Madison called it “the baneful practice of secessions . . . 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.”. Federalist 58; see also William C. Marra, “What Would America’s Founders Think About Fleeing Legislators?” Weekly Standard (February 28, 2011) at http://www.weeklystandard.com/blogs/what-would-americas-founders-think-about-fleeing-legislators_552632.html?page=2.

The Framers effectively countered such a threat by allowing a smaller number of legislators to compel their erstwhile colleagues to return. In the Philadelphia Convention, John Randolph and James Madison proposed adding this requirement on August 10, 1787, the day that the quorum requirement was debated. Kurland & Lerner at 290. If effectively applied, it can prevent a minority takeover of the power of the national government through inaction.

Yet another example of how current developments help us to see the wisdom and foresight of the Constitution’s drafters.

Mr. 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 8, 2011/6 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 04, Clause 1-2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 04, Clause 1-2, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I Section 02 Clause 1-2, Article I Section 04 Clause 1-2, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment X, Constitutional Amendment X, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 59, Joerg W. Knipprath

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article I, Section 4, Clauses 1-2

1: 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.

2: The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December,5 unless they shall by Law appoint a different Day.

Article I, Section 4, cl. 1, delegates to the state legislatures the authority to determine the time, place and manner of electing Senators and Representatives. However, with one qualification that has been rendered effectively moot by the 17^th Amendment, Congress may supersede state law.

This is one of few clauses in the Constitution that affirmatively require the exercise of authority by the states. It raises interesting questions about the applicability of the traditional “default” view that all powers not affirmatively delegated to Congress or explicitly denied to the states, are reserved to the states or the people, as reflected in the 10^th Amendment. Does this explicit provision “create” power for the states to act? Or, does the clause require the states to exercise a power they already have, but that they could ignore in the absence of this command?

Justice Stevens, writing for the majority, and Justice Thomas, writing for four dissenters, debated that issue in a fascinating case, U.S. Term Limits v. Thornton, in 1995. Term Limits addressed the constitutionality of an Arkansas state constitutional amendment that imposed term limits on its Senators and Representatives. Technically, the opinion involved the interpretation of the “qualifications” clause of Article I, Section 2, clause 2, whether term limits constituted an unconstitutional addition to the listed qualifications. But both sides (especially Justice Thomas) explored the applicability of Article I, Section 4, and the question of state power to act when the Constitution is silent.

The majority held that the states have no powers to act in matters that spring exclusively out of the existence of the national government created by the Constitution, unless the Constitution itself delegates that power to the states. Justice Stevens quoted the brilliant early-19th century nationalist Justice Joseph Story that, “No state can say, that it has reserved, what it never possessed.” He also noted that Alexander Hamilton, writing in Federalist 59, had warned of the danger to the Union’s existence if the states had the exclusive power to regulate Congressional elections.

In Stevens’s view, the Constitution created the national government ex nihilo, and the states had reserved powers only in those areas previously within their legislative discretion. Hence, since there was no affirmative grant to states to add qualifications for federal representatives, such power did not exist. Stevens viewed Article I, Section 4, as evidence for this proposition, as it (in his view) delegated authority to the states to act that, in the clause’s absence, would not have existed, while giving Congress ultimate control.

Stevens’s position makes it unclear why the clause is needed at all. Presumably, if the states do not have the inherent power to control the manner of election of the national legislature, but such power rests instead in the federal government, Congress already has ultimate control over the manner of election. Also, if this was delegation to the states, there is no need to declare what the states “must” do, and what Congress “may” do.

Justice Thomas found Stevens’s view to be exactly backwards. Since the states once had all powers, including the power to create whatever Union they wanted, or none at all, they also retained whatever authority they had not surrendered or that was not denied them in regards to the composition of the national government. Since the Constitution does not deny the states the power to add (but not subtract) from the listed qualifications, term limits are constitutional. Moreover, Article I, Section 4, does not detract from the general position that the states have all reserved powers. Thomas saw this provision not as a delegation to the states from the people, created by the Constitution. Rather, this is an imposition on the states of a duty to act, where otherwise none would exist.

Thomas pointed out that, without such a clause, the states could still determine the time, place, and manner of electing members of the national legislature. But they also might refuse to elect members of Congress, to cripple the federal government just as Hamilton warned. This clause, then, imposed a duty on the states (“must”) to exercise that power, subject to the authorization to Congress (“may”) to override the states’ choices. As a corollary, if the clause did not exist, Congress would have no power to act.

Until 1842, Congress left regulation of such elections to the states. States did not adhere to a single standard of electing Representatives (Senators were still elected by state legislatures). Often, at least some Congressmen were elected at-large. In that year, Congress began to require that single-member districts be used. By 1911, federal law mandated that such districts be “composed of a compact and contiguous territory and containing as nearly as practicable an equal number of inhabitants.”

When a later law eliminated that last requirement, substantial malapportionment occurred. Eventually, the Supreme Court waded into this “political thicket,” using another related provision, Article I, Section 2, to strike down apportionment that resulted in districts of disproportionate populations. A nearly absolute “one man-one vote” equality emerged to assure that, as nearly as practicable, “one man’s vote in a congressional election is to be worth as much as another’s.”

Additional questions raised by this clause are whether Congress could regulate primaries that, after all, are an integral part of the election process (based on Supreme Court opinions, today it probably could) or financing of Congressional elections (yes, within the broad contours of the First Amendment). Congress can prescribe the mechanics of voting, as well.

State laws are still important. For example, states still control the requirements for recounts, as a number of candidates in various close races in November, 2010, discovered. As well, states have different rules (and interpretations by state courts) for replacing candidates who drop out shortly before the election. Frank Lautenberg of New Jersey was permitted to replace corruption-plagued Democratic Senator Robert Torricelli on the ballot when the latter withdrew a month before the election. On the other hand, Texas Republicans were not permitted to replace Tom DeLay’s name on the ballot when he withdrew five months before the election.

March 7, 2011/9 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 03, Clause 6-7 of the United States Constitution

6. Guest Constitutional Scholar Essayists, Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 03, Clause 6-7, Blog, The Honorable James E. Rogan 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 03 Clause 6-7, The Honorable James E. Rogan

Guest Essayist: The Honorable James E. Rogan, Judge of the Superior Court of California

Article 1, Section 3, Clause 6-7
6. 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.
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.

During President Bill Clinton’s administration, he became a defendant in a sexual harassment civil rights lawsuit filed against him by a subordinate state employee from his days as Arkansas governor. At the case proceeded toward trial, Clinton tried to conceal from the court a recent affair with another young subordinate employee. When the federal judge in the lawsuit ordered Clinton to answer questions about such relationships, Clinton denied the affair under oath. Thus, the president committed felony perjury, and later obstructed justice, to avoid paying damages to the plaintiff in the lawsuit, as well as to duck the embarrassment and political damage of disclosure. After a special prosecutor investigated and delivered an evidentiary report to Congress on Clinton’s deceit, the House impeached Clinton, thereby triggering the constitutional obligation of an impeachment trial under Article 1, Section 3, Clauses 6 and 7. In 1998-1999, I became intimately familiar with this obligation: I was one of the prosecutors in Clinton’s Senate impeachment trial. Here are three brief thoughts about the experience:

First, the Constitution solemnly required Clinton, as a condition of becoming president, to swear an oath to “preserve, protect, and defend the Constitution,” and to take care that he executed our laws faithfully. That obligation included defending laws that protect women in the workplace, just as it also required protecting our legal system from perjury, obstruction of justice, and abuse of power. Fidelity to the presidential oath is not dependent on any president’s personal threshold of comfort or embarrassment.

Second, during Clinton’s impeachment, we came under attack from many who accused us of using impeachment to unconstitutionally seek to “undo an election.” Hillsdale College President Larry Arnn debunked this notion eloquently:

[E]lections have no higher standing under our Constitution than the impeachment process. Both stem from provisions of the Constitution. The people elect a president to do a constitutional job. They act under the Constitution when they do it. At the same time, they elect a Congress to do a different constitutional job…. If the President is guilty of acts justifying impeachment, then he, not the Congress, will have overturned the election. He will have acted in ways that betray the purpose of his election. He will have acted not as a constitutional representative, but as a monarch, subversive of, or above, the law. If the great powers given the president are abused, then to impeach him defends not only the results of elections, but that higher thing which elections are in service, namely, the preeminence of the Constitution[.]

Finally, I didn’t vote to impeach Clinton or prosecute him in an effort to police his personal life. Whether he had one affair or a thousand of them was of no moment to me. (Besides, as an ex-bartender from Hollywood’s Sunset Strip, I’m hardly a stranger to temptation myself). However, I did care deeply about the precedent his conduct set for future chief executives who might later commit the same felonies for reasons weightier than testosterone.

Why is this notion of precedent so important?

When the Founders wrote impeachment into the Constitution as the remedy against those who commit “high crimes and misdemeanors,” they never defined that phrase. The definition comes from precedent, i.e., the previous House of Representatives impeachments. Whenever the House decides certain conduct is (or is not) impeachable, that becomes the precedent, or the standard, for future impeachments. Had the House failed to impeach Clinton just because of the tawdry subject matter underlying his crimes, any future president committing perjury or obstructing justice with far more destructive motives could point to the Clinton Precedent and claim his conduct was not impeachable.

The polls showed that most Americans at the time hated Clinton’s impeachment, and also hated those of us involved in it. As a result of impeachment, my opponent in the next congressional election defeated me handily. Despite the loss, I take comfort in knowing that because we impeached Clinton, Americans today live in a country where every future president is on notice that perjury and obstruction of justice is a one-way White House eviction notice—as long as a future members of Congress have the spine to stand up to him.

James E. Rogan is a Judge of the Superior Court of California. He is a former Member of Congress who served as a House Manager in the impeachment trial of President Clinton. This essay is adapted from his new book, “Catching Our Flag: Behind the Scenes of a Presidential Impeachment,” published by World Net Daily Books and scheduled for release on May 3, 2011.

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March 7, 2011/3 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 03, Clause 4-5 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 03, Clause 4-5, David Addington 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 03 Clause 4-5, David Addington

Guest Essayist: David Addington, Vice President for Domestic and Economic Policy of The Heritage Foundation and a former chief of staff and counsel to the Vice President of the United States

Article 1, Section 3, Clause 4-5
4: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
5: 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.

Article I of the Constitution creates the office of Vice President and assigns to it two legislative functions: to preside over the Senate and to vote in the Senate in case of ties. The legislative functions of the vice presidency are separate from the two executive functions the Constitution as amended assigns to the Vice President (succession to the Presidency and a role in determining presidential inability). The legislative functions of the vice presidency take little of a modern Vice President’s time, but they may on occasion have a significant impact on public events.

The Constitution specifies that the Vice President “shall be President of the Senate,” but does not specify what activities that senatorial presidency will entail, other than counting the electoral votes for President and Vice President every fourth year in the presence of both Houses of Congress. Today, under the rules and precedents of the Senate, presiding over the Senate involves little beyond recognizing Senators to speak in debate, maintaining order in the Senate, occasionally ruling on a question of parliamentary procedure, administering the oath of office to Senators, and from time to time making an appointment to a legislative entity based on the advice of party leaders. A Vice President rarely presides over the Senate. Indeed, the Senate’s elected President pro tempore rarely presides. Senate rules allow the President pro tempore to designate any Senator to preside over the Senate in his place and allows that designated Senator in turn to designate another Senator to preside; in practice the Senators of the majority party take turns presiding over the Senate for brief periods.

The Vice President’s other legislative function — voting in case of ties among the Senators — can be of historical moment, depending upon the underlying legislative proposition on which Senators are evenly split. In his eight years as America’s first Vice President, John Adams cast tie-breaking votes in the Senate 29 times, according to the Senate Historical Office (some authors claim 31 times). His tie-breaking votes defeated, among other things, legislation to give the Senate a role in the dismissal of executive officers and to delay the move of the Nation’s capital from New York City to Philadelphia. At the other end of our Nation’s constitutional history, in his eight years as Vice President, Richard B. Cheney cast tie-breaking votes 8 times. His tie-breaking votes organized a Republican majority in a Senate that had an equal number of Democratic Senators and Republican Senators and gave final passage to major tax cut legislation in 2003. Thus, it is clear that the constitutional authority of a Vice President to cast a tie-breaking vote in the Senate can have significant consequences.

In comparison to the authority the Constitution vests in the President, the Congress, and the Supreme Court, the Constitution vests very little authority in the Vice President. Indeed, Vice President John Adams, in a letter dated December 19, 1793, to his wife Abigail, gave his experienced verdict on the vice presidency: “the most insignificant Office that ever the Invention of Man contrived or his Imagination conceived.” Yet, in modern times, Vice Presidents have had significant influence. Although, as the U.S. Department of Justice said in a legal opinion on March 9, 1961, “the Vice President is an elective officer in no way answerable or subordinate to the President,” modern Presidents have sought the advice and assistance of Vice Presidents, who have given it. Ultimately, a Vice President is influential within the executive branch as long as the President finds the Vice President’s advice persuasive and assistance useful. For modern Vice Presidents, their influence within the executive branch resulting from their relationship with the President has far exceeded their influence flowing from their very limited constitutional authority.

– David S. Addington is the Vice President for Domestic and Economic Policy of The Heritage Foundation and a former chief of staff and counsel to the Vice President of the United States

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March 7, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 03, Clause 3 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Andrew Langer, Article I, Section 03, Clause 3 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Andrew Langer, Article I Section 03 Clause 3, Constitutional Amendment vIX, Constitutional Amendment vIX, Constitutional Amendment X, Constitutional Amendment X, Constitutional Amendment XVII, Constitutional Amendment XVII, Declaration of Independence, Federalist No. 62

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Article 1, Section 3, Clause 3

3: 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.

In setting out the framework for the fledgling government, the founders grappled with the most basic issue of creating a government that would not be so powerful as to overwhelm the citizenry, but still strong enough to withstand the test of time. The Senate, created as an analog to the upper house of Britain’s parliament, was meant to be a more deliberative body than the House of Representatives.

As such, the qualifications are rather different than those set out for House members. House members need only be 25 years of age, American citizens for only seven years, and need not be actual residents of their congressional district at the time of the election.

In fact, the qualifications set out in this section are rather more proscriptive than those set out in other sections, and it begs the question, “why.” Keeping in mind that this project will discuss the 17th Amendment at a later time, suffice it to say that initially United States Senators were to be selected by the legislatures of individual states. Because those doing the selection would be a narrower group in size and scope, the founders wanted to make certain that appropriate choices would be made by these state legislators. While there is tremendous accountability in having legislators do that selecting, nevertheless the authors of the Constitution thought it best to place strict rules on those qualifications.

Digging deeply into those qualifications themselves, what first jumps out is that the age requirements are greater than those for the House. If we are to understand that the Senate was to be the more deliberative of the houses of the US Congress, then this makes perfect sense. The founders recognized that the Senate ought to have a greater level of gravitas (given the limitations on size)—and such gravitas generally comes with age and experience. Even in the 18th Century, there was a tremendous leap in maturity between the ages of 25 and 30 (which, given life expectancies at the time was approaching middle age). Madison, in Federalist #62, referred to this as “stability of character.”

This requirement also opens the possibility of potential Senators gaining federal legislative experience by first being members of the US House of Representatives.

Most people are surprised to learn that there are no actual “residency” requirements for US House members—they must merely inhabit the states whose districts they are supposed to represent. The Constitution’s authors had tremendous faith in the people in terms of being able to decide the propriety of those they would directly elect. In both the requirements for House members and for Senators, they use the word “inhabit” to make it abundantly clear that they wanted these elected officials to live in their states—and again, the founders came down somewhat more strictly on potential Senators. According to various historical accounts, Convention Delegate (and member of the committee to author the Declaration of Independence) Roger Sherman moved specifically to substitute “inhabit” for “resident” for these reasons.

While there may have been adequate reasons for not requiring habitation in House districts in the 18th and early 19th centuries, given the finite number of Senators from each state the founders wanted to ensure that someone from that state would be representing that state’s interests in the Senate. This was especially important when one considers that given the realities of travel and transportation at this time, as well as prevailing political perceptions (as evidenced later by the 9th and 10th Amendments), the states themselves were viewed as sovereign entities in their own right.

According to the Senate’s official history, the 9-year citizenship requirement was a compromise—between those who believed that anything less would allow for people with a remaining “dangerous attachment” to their mother countries to gain undue influence in American affairs (especially given the Senate’s role in ratifying treaties with foreign nations), and those who believed that anything more would hinder “positive immigration” and offend those nations in Europe who had lent support for our revolution.

It is interesting to note in this regard that this qualification differs greatly from that of the President’s. The founders recognized that because the Senate’s power was diffused among many members, the President, as Commander-in-chief and the Chief Executive of the United States, acts with a solitary and unilateral power (within limits). So while the President must be a natural-born citizen, the same does not hold true for Senators.

All in all, while relatively straightforward, once again the founders demonstrated their brilliance in laying out a strong yet simple framework for our nation’s government.

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/

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March 7, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 03, Clause 2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 03, Clause 2, Joseph Postell, Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 03 Clause 2, Federalist No. 62, Federalist No. 63, Joseph Postell PhD

Guest Essayist: Joe Postell, University of Colorado at Colorado Springs

Article 1, Section 3, Clause 2
2: 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.

This seemingly-minor provision of the Constitution is in fact highly important. Although we rarely pause to consider it today, deciding that one-third of the members of the Senate would be up for re-election every two years is counter-intuitive. Why not just say that each senator has a six year term and hold elections for the entire Senate every six years? The House of Representatives does not have staggered terms, in which half of the Members are elected each year. Why is the Senate different?

The most important characteristic the Senate is supposed to provide is stability, as James Madison makes clear in Federalists 62 and 63. A huge problem during the 1780s was the mutability, or constant changing, of state laws. The assumption of the Founders was that elections would tend to oust a relatively large percentage of incumbents in each election cycle, which would produce mutability in the laws.

Today about 90% of incumbents are re-elected in an average election cycle. But at the time of the Founding, incumbents were not as safe. Joseph Story wrote in his Commentaries on the Constitution that “mutability in the public councils, arising from a rapid succession of new members” creates “serious mischiefs. It is a well known fact in the history of the states, that every new election changes nearly or quite one half of its representatives.” And the more new members in a legislative assembly, the more changes will be made to the laws, producing greater instability. According to Story, “experience demonstrates, that a continual change, even of good measures, is inconsistent with every rule of prudence and every prospect of success.”

Why is instability in the laws so bad? Madison gives five reasons in Federalist 62, all of which are highly relevant today.

First, instability is harmful because it undermines foreign policy. The Senate has an important role in foreign affairs. If the character of the Senate changes dramatically at one time, due to every member being elected, it could result in a dramatic shift in foreign policy. This would make us seem less trustworthy to other nations in the world, and make them less agreeable to our interests.

Second, instability in the laws “poisons the blessings of liberty itself.” This is because it undermines the rule of law, which requires that laws be settled and known to everyone. But if the laws are constantly changing because the legislature is constantly changing, “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.” Re-electing all senators at one time would undermine the stability in the laws necessary to preserve the rule of law.

Third, instability in the laws gives an “unreasonable advantage…to the sagacious, the enterprising, and the moneyed few, over the industrious” of the people. This is because changes in the laws will be known and tracked by the wealthy, who will be able to take advantage of the new laws. “Every new regulation concerning commerce,” Madison explains, “presents a new harvest to those who can watch the change, and can trace its consequences.” Joseph Story concurred, that “the instability of public councils gives an unreasonable advantage to the sagacious, the cunning, and the monied capitalists.” Thus, instability in the laws, caused by volatility in the Senate, allows insiders to take advantage of all the new regulations.

Fourth, instability dampens entrepreneurship. Who will be willing to consider new business opportunities if there is a concern that the government’s laws may change tomorrow? Economies succeed when laws are stable and not constantly changing. Madison writes, “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?” Stability in the Senate ensures that entrepreneurs can create jobs without being afraid of what government might do in the near future.

But the fifth and “most deplorable effect” of constantly changing laws, Madison writes, “is that diminution of attachment and reverence” for the law which it produces in the people. When the laws are constantly changing, citizens’ faith in their government and in their representatives is reduced. This is the worst effect of unstable laws produced by unstable legislatures.

The primary purpose of the Senate is to produce stability in the government and in the laws produced by the government. This provision of the Constitution promotes stability by ensuring that only one-third of all senators are up for re-election in a given election cycle.

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March 7, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 02, Clause 5 and Section 3, Clause 1 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 02, Clause 5 and Section 03, Clause 1, William Morrisey, Ph.D. 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 02 Clause 5 and Section 03 Clause 1, Connecticut Compromise, The Articles of Confederation, William Morrisey PhD

Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Article 1, Section 2, Clause 5

“The House of Representatives shall chuse the Speaker and other Officers; and shall have the sole Power of Impeachment.”

The Articles of Confederation had established a federal government in which all three powers—legislative, executive, and judicial—resided in one body, the Congress. This proved unwieldy and ineffectual. In principle, such an arrangement violated the Jeffersonian precept that any person or institution holding all of these powers constitutes a tyranny. The popular foundation of Congress under the Articles mitigated this danger but did not remove it, inasmuch as popular majorities might well tyrannize. The primary guard against Congressional tyranny thus consisted precisely in Congressional incompetence, an incompetence derived not from the incapacity of its members but from the structure of the institution itself. At Philadelphia, the Framers needed to remove the structural impediments to good government while simultaneously preventing governmental efficiency from malign use. Separated, balanced, but also interdependent branches of government, each exercising one of the three powers, could prevent tyrannical government without preventing firm government.

The House of Representatives chooses its own officers, including its chief officer, the Speaker of the House. This seems obvious to us now, but consider the other possibilities. The Framers might have empowered the President to choose these officers, selecting them from each newly-elected batch of Representatives. This quite obviously would have compromised the independence of the House from the Executive branch. In the most recent Congressional election (for example) it would have enabled President Obama to choose the officers of a House that had been elected in part as a popular rebuke to the president’s party and its policies. Alternatively, the Framers could have provided that the Speaker and perhaps some of the other officers might be elected by the Electoral College—i. e., by representatives of the people as a whole meeting prior to and independently of the first meeting of the newly-elected House. But this would elevate them to same status as the president and vice-president; separation and balance of powers requires that equal prestige be attached to the legislature as a branch of government and not to particular members within it. Choice of the House officers by the House members ensures that those officers will be well known and esteemed by the majority of their colleagues. Other methods of selection could not guarantee this.

The power of impeachment bespeaks the character of the American regime, of republican government itself. In his 1791 Lectures on Law, James Wilson writes, “The doctrine of impeachments is of high import in the constitutions of free states. On one hand, the most powerful magistrates should be amenable to the law; on the other hand, elevated characters should not be sacrificed merely on account of their elevation. No one should be secure while he violates the Constitution and the laws; every one should be secure while he observes them.” The laws are the considered judgments of the elected representatives of the American people; to violate them while entrusted with a Constitutional office must deserve the swiftest punishment consistent with a fair trial. However, only a violation of the law can deserve such punishment, or else no sensible person would undertake the responsibilities of public office. To keep impeachment and trial within the bounds of the rule of the people’s law, as distinguished from the envy, partisan rancor, or other passions of the hour must be a fundamental purpose of any just and reasonable constitution-maker.

The Framers assigned the power of impeachment to the House. That the House wields the sole power of impeachment speaks not only to the separation of powers but to their interdependence. The House alone can impeach an officer of the federal government. Impeachment means accusation or indictment, parallel to the power of a grand or petit jury. Under the British constitution the House of Commons was regarded as “the grand inquest of the nation”; as the most democratic branch, the one most frequently elected, the United States `house of commons’ indicts officers in the name of the sovereign—namely, the American people, unencumbered by any dynasty or aristocracy. This provides for the independence of the House from all other branches, including the other legislative branch.

But, once impeached, the accused officer then has his day in court, so to speak, not in the House but in the Senate; further, presiding over that trial will not be any senator but the Chief Justice of the United States. This illustrates and provides for the interdependence of the three branches. Without interdependence, the American government would feature branches not merely separated but isolated from one another. Each branch would go its own way, leading to governmental incoherence—to what Publius calls, in another connection, a hydra or many-headed monster. The incompetence of the Articles of Confederation Congress would reappear, albeit in a more complex, interesting, and elegant form.

As intended by the Framers, impeachment and conviction of wayward federal officers has proven rightly difficult but possible in cases of clear malfeasance. Removal from office has remained mostly in the best hands—namely, the people themselves, who elect, re-elect or dismiss their representatives in free elections.

Article 1, Section 3, Clause 1

“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.”

Publius famously asserted that “the science of politics” had “received great improvement” in modern times. (Some fifty years later, Tocqueville rather more dramatically—he was French—called for “a new politics for a world altogether new”). The newness of American politics and of American political scientists consisted of two things: first, our freedom from rule by monarchic dynasties and titled aristocrats; second, our freedom from the already formidably centralized government of Europe. The “New World” that Europeans had `discovered’ was new to them; what they had discovered was of course a very old world populated by Amerindian nations and tribes. It was new to the Europeans. The real newness of the New World arose from the politics of the European settlers, governing themselves largely unsupervised by European ruling classes and institutions.

Freedom from monarchs and aristocrats meant that Americans could found a regime not seen since antiquity, a republic in which the people were sovereign, with no admixture of any families or classes that claimed a superior right to rule. For example, although most states required property ownership of voters and of office-holders, nothing but ill luck or incapacity barred today’s pauper from property ownership and full citizenship rights tomorrow. The socially egalitarian regime of the United States could better reflect the natural equality of human beings enunciated in the Declaration of Independence, vindicating in the revolutionary war for independence.

Political communities coalesce not only in the form of their regimes. They also form themselves as relatively large or small societies in terms of population and territory and as relatively centralized or decentralized with respect to their ruling structures. The polis of ancient Greece, small and centralized, contrasted sharply with the contemporary empires of Persia and of China—huge but decentralized entities which gave their provinces substantial latitude for self-government because it had to. In antiquity, no ruler commanded a ruling apparatus that could do much more than exact tribute from the peoples it conquered, quell uprisings, and defend imperial borders.

The modern state changed this. Envisioned in principle by the Italian Renaissance writer, Niccolò Machiavelli, and put into practice by the Tudor dynasty in England, the Bourbon dynasty in France, and many others, the state combined some of the size of an empire with the centralization of the polis or `city-state.’ With their standing, professional armies funded by revenues collected by state employees or `bureaucrats’ from societies whose energies were funneled into commercial acquisition, and industrial productivity spurred by the new, experimental science aiming at the conquest of nature—all guided by reformed financial institutions—states quickly became the most powerful polities ever seen.

The American founders needed to frame a modern state in order to defend American citizens from the statist empires of Europe that still bordered them to the north and south, and also from the still-powerful Amerindians in the west. As we know, they wanted a republican regime for this state. But could a centralized, modern state have a republican regime (and keep it, as Franklin pointedly remarked)? Did the centralized ruling apparatus of modern statism not lend itself to the rule of the one or of the few? European statesmen thought so; for the next century, they expected the new republic to implode. On occasion, it very nearly did.

The invention of statesmen devising a new political science for a new world, the United States Senate answers these questions, both with respect to the regime of republicanism and the polity of statist confederalism.

In the Philadelphia Convention, the framers eventually agreed that the unicameral legislature of the Articles of Confederation should be replaced by the bicameral legislature that had been most copiously advocated by John Adams in his treatise, Defence of the Constitutions of the United States. Gouverneur Morris of Pennsylvania argued for bicameralism as a pillar of what Aristotle and other classical political philosophers had called a `mixed regime’—one that balanced the rule of the few who are rich with the rule of the many who are poor. The Senate, Morris said, ought to represent the interests of the commercial oligarchies consisting of urban merchants and financiers as well as country gentlemen. The House ought to represent everyone else—particularly the middling classes of small farmers and shopkeepers. “The two forces will controul each other,” providing “a mutual check and a mutual security,” Morris asserted. The British Constitution exemplified such a mixed regime, albeit with a House of Lords—titled aristocrats—not American-style commoners who happened to be wealthy. John Dickinson of Delaware hoped that the Senate would “bear as strong a resemblance to the British House of Lords as possible.”

James Madison of Virginia saw the regime implications of the Senate more clearly. The Senators would represent no particular class or caste; they would represent the constituent states of the United States. Without titles of nobility (banned in the Constitution) or any set level of wealth, the Senators as such would have no interests separate from those of the people. The Senate therefore would fit easily into a pure or unmixed republic. At the same time, the six-year terms of office would lend the Senate some of the virtues of an aristocracy: steadiness of purpose, the tendency to take a longer view of things that that likely among the representatives in the more democratic House, with their biannual re-election worries.

The design of the Senate also addressed the dilemma of statism. Under the Articles of Confederation, the country had suffered from the inefficiencies, injustices, and dangerous of excessive decentralization. At the Convention, however, delegates from the smaller states in the Confederation feared relinquishing any more of their sovereignty, fearing domination by the large states. The Framers had already tied the House to the democratic principle of proportioning the number of representatives from each state to the size of its population. Large-state delegates advanced the Virginia Plan: a bicameral legislature, membership of both houses being determined by population. Small-state delegates countered with the New Jersey Plan, which would have retained the Articles of Confederation’s unicameral legislature, with one vote per state. All accounts of the Convention emphasize that the debate between small-state and large-state delegates consumed more time and energy than any other item. How could the small states defend themselves in the new legislature without sacrificing the just, republican claims of the large states?

The answer—called the Connecticut Compromise because advanced by Roger Sherman of that state but also propounded by Dickinson—stipulated bicameralism but with two different modes of election that satisfied both sides and also guaranteed the independence of one house from the other. If the Senators were selected by the House, the Senate would have no independence and bicameralism would be nominal; if Senators were selected by voters in each state they might prove better demagogues than statesmen. The Compromise established that state legislators choose the senators. The legislators would have every reason to send their ablest men to defend the interests of their state in the national capital—men of “distinguished characters,” as Dickinson put it. For his part, Sherman and George Mason of Virginia argued that confederal union must give each state—especially the small ones—the means of defending themselves within the national councils.

Setting the number of each state’s senators at two accomplished all of these purposes. As John Randolph of Virginia argued, a Senate smaller than the House would be “exempt from the passionate proceedings to which numerous assemblies are liable”; the more intimate chamber would conduce more to deliberation than to verbal pyrotechnics. This comported with the `aristocratic’ character of the Senate. At the same time, delegations of two senators instead of one reduced the risk of a state being disenfranchised by accident or illness; two senators voting individually and not as a bloc precluded the possibility of a deadlocked (1-1) vote, which also would effectively disenfranchise a state on those occasions when senators from the same state disagreed. Finally, giving every state an equal number of senators calmed the fears of the smaller states; confederalism would sustain them, not overwhelm them.

By designing the United States Senate, the Framers thus addressed both the `regime’ question and the `polity’ question. The Senate reinforces the republican regime by providing an institutional platform for deliberation and steadiness of purpose that a large, unicameral legislature might lack. The Senate also reinforced a confederal polity—a modern state sufficiently centralized and powerful to defend itself in a dangerous world, but sufficiently responsible to its constituent political parts to prevent that centralized power from usurping the right and duty of self-government.

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.

Posted in Analyzing the Constitution Essay Archives | 7 Comments »

7 Responses to “February 28, 2011 – Article 1, Section 2, Clause 5 and Section 3, Clause 1 – Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”

Ron Meier says:

February 27, 2011 at 10:31 pm

Thanks Professor Morrisey; I found the discussion on the Senate to be especially enlightening.

I wonder how different things might be today if the original intent of the method of choosing Senators were adhered to instead of changing that method to election by the same method as Representatives are elected? For example, would the extensive use of Federal mandates (education, highway construction, etc.) have passed the Senate if the states, rather than the people, were represented in the Senate?

Ralph T. Howarth, Jr. says:

February 28, 2011 at 12:26 am

@Ron Meier, not to mention the all-around carrot and stick methods of regulation over areas Congress is not granted power to do by the states. Our statesmen go to Washington D.C. to have to endure a system of inducements, bribes, and compromise in order to get money that left their state to come back and fund what are local affairs within their state. If money leaves the state to only come back for municipal affairs then something is out of whack. All taxes used to be collected by the states themselves and then paid out of the state’s office to the US Treasury. We ought to go back to that to where people just file one income tax form with their state that pays the federal income tax in some percentage out of the state tax. That way the states pay the taxes to the federal like they used to and it will be the states the hold the purse strings. With such an arrangement then much of the current carrot and stick methods of the federal government would subside; that, and restoring the election of Senators by state legislatures.

Prof. Morrisey’s expository essay reminds me of how the terms “confederal” and “federal” were used so interchangeably. I sought to find a difference and picked up on two characterstics that differentiate the two:

1) A confederacy tended to not have delegated legislative powers in a central government,
2) and likewise tended to have a legislature convened on an as needed basis.

Otherwise the two terms were rather interchangeable in political science.

Janine Turner says:

February 28, 2011 at 1:40 pm

I thank you Professor Morrisey, for your wonderful essay today! I personally feel so lucky to have the opportunity, as the co-chair of Constituting America, to not only be hosting this forum but to be learning from it, as well!! I never knew that in the Articles of the Confederation the legislative, executive and judicial branch all operated under one body – the congress. It is equally fascinating to concretely understand the amazing forethought of our founding fathers regarding the impeachment process – the independence of the people’s house yet the interdependence of the subsequent actions once an impeachment was initiated. The house initiates it, the senate holds the proceedings and the Chief Justice of the Supreme Court presides over it. Amazing! Once again, this process regarding impeachment reiterates the importance of three independent branches that must yet integrate to govern. Re: Article 1, Section 3, Clause 1 – I find the process of how they came to a compromise compelling. I’ve always known of the “great
compromise,” I now know it was the “Connecticut Compromise” due to Roger Sherman of Connecticut. It is interesting to understand the interpretations of Gouverneur Morris’ insights, then Madison’s and finally Sherman’s, not to mention John Adam’s inspiration of the bicameral
legislature! Divine providence, mixed with the talents of brilliant, learned men, both saved and lead the struggling country through it’s infancy. A republic was nurtured through it’s adolescence – now in adulthood – can we the people keep it? At this point, we can only keep it, through knowledge and sacrifice that parallels the passions of our founding fathers. Thank you Professor Morrisey and to all of you who are joining us! Spread the word about this forum!

No one should be secure while he violates the Constitution and the laws; every one should be secure while he observes them.”

ThreeDogs says:

February 28, 2011 at 2:35 pm

I have to echo the sentiments of both Ralph and Ron in wondering what things would be like today without the 17th amendment. Looking forward to that discussion down the line.

Thanks Mr. Morrisey!

Cutler says:

February 28, 2011 at 6:49 pm

The essay was interesting and enlightening, but I love the comments by Mr. Meier and Mr. Howarth. But no, that would be too close to the intentions of the Founding Fathers for the present Regime to tolerate. So for now we must use the present method to slowly take back the Senate with strong conservative leaders who, along with the public will take back America from those who would tear away its foundations.

zac allen says:

February 28, 2011 at 7:58 pm

Well… The senators to this day should be sent there by our legistlature. Its what kept Federalism intact. That way they would be sent there representing the states an its best interest… if they didn’t they could be recalled. i.e… The bank bailout TARP resolution. Anyway…the 1930′s took a grat leap away from what our founders intended. As a side note…. Every time the media or politicians call us a democracy, they should be corrected, and remind them we are federal republic, with representive democracy….. Not mob rule

Anglo says:

March 1, 2011 at 9:22 am

No one should be secure while he violates the Constitution and the laws; every one should be secure while he observes them.” in comparison to-Separated, balanced, but also interdependent branches of government, each exercising one of the three powers, could prevent tyrannical government without preventing firm government.

Such is the folly of the two party system when at any time it can hold dominance over any two of the three branches of government. Such as has and is being experienced today as there are sufficient grounds for impeachment to be exercised as concerning the executive branch.

March 7, 2011/3 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 02, Clause 4 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 02, Clause 4, William C. Duncan 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I Section 02 Clause 4, Constitutional Amendment XVII, Constitutional Amendment XVII, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Article 1, Section 2, Clause 4: When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The wisdom and foresight of the Framers of the U.S. Constitution is not manifested only in the substantive principles of constitutional design but also in the details of their plan of government. Thus, in the seemingly small matter of filling vacancies in the House of Representatives, we see manifestations of protection of state prerogatives, safeguarding the representative principle and flexibility for specific circumstances. See Joseph Story, 2 Commentaries on the Constitution §683 (1833).

The fourth clause of the section of Article I dealing with the House of Representatives provides: “When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such vacancies.” Though the Framers might have provided for a national solution to the problem of a vacancy, they deferred to the state. They did not, however, leave to the state executive (it should be remembered that some states did not yet have governors at the time of the drafting, thus the use of “Executive Authority” which could include the presidents of Delaware or Pennsylvania) the ability to appoint a successor to a Representative who had left a vacancy. Rather, in keeping with the principle of representation so central to the plan for a House of Representatives, the Framers specified that an election should be held to determine a replacement. Thus, no section of the country should be left without a popular representative for long. By contrast, a vacancy in the Senate was to be filled by the Legislature or temporarily by the executive (until the 17^th Amendment), reflecting the design of that branch as representative of the interests of states as states.

The only major controversy involving this provision seems to have occurred early on when William Pinkney, from Maryland, resigned as a member of the House of Representatives. Some members of Congress questioned the propriety of seating the man elected to fill the vacancy. Their concern was that perhaps a resignation ought not be allowed, following precedent from Britain’s House of Commons. That argument was not accepted by the body and the successor was accepted as a member of the House. See Philip B. Kurland & Ralph Lerner, editors, 2 The Founders Constitution 146-147 (1987).

This clause is still operative. As of this writing, a vacancy has occurred in New York’s 26^th District due to the resignation of Representative Chris Lee. New York law gives the governor power to determine that a vacancy exists and then to provide for an election for the replacement. N.Y. Public Officers Law §42. Importantly, there seems to be no controversy over the constitutional provision at issue only at the expense of an election. See Evan Dawson, “How Much Will a Special Election Cost?” 13WHAM (Rochester), February 9, 2011 at http://www.13wham.com/content/blogs/story/Chris-Lee-Fallout-How-Much-Will-a-Special/qn57U3H1VkyesU0gu3cmoA.cspx.

This entry was posted on Friday, February 25th, 2011 at 12:06 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

13 Responses to “February 25, 2011 – Article 1, Section 2, Clause 4 of the United States Constitution – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation”

BobG says:

February 25, 2011 at 10:38 am

I don’t see much discussion happening on this. It seems pretty straightforward. I would just like to say that it’s an excellent observation pointed out in the first sentence of the explanation “The wisdom and foresight of the Framers of the U.S. Constitution is not manifested only in the substantive principles of constitutional design but also in the details of their plan of government.”. I couldn’t agree more. It’s such a simple yet complete document. Breaking it down in this manor over the 90 days is a wonderful idea. It’s a shame this is not taught in our schools this way. Thank You.

Janine Turner says:

February 25, 2011 at 10:47 am

Mr. Duncan,
I thank you for your interesting, insightful essay. It is always refreshing to see yet another aspect of the Constitution being applied today, once again emphasizing its relevancy. This clause demonstrates how intricate and vital all sections of the Constitution are. It is our reference, it is our roadmap. Citizens who think the Constitution is not relevant have not read it, and/or have not joined our educational forum!
God Bless,
Janine Turner

Susan says:

February 25, 2011 at 12:27 pm

Hmmm, wonder what the attitude towards preserving states rights would be if our Governors were call State presidents instead? Governor has a subservient connotation to the superior authority whereas a State President seems to me would elevate the governor to a similar position.

Ralph T. Howarth, Jr. says:

February 25, 2011 at 3:59 pm

Good observation Susan. The original draft constitution submitted to the 1787 ConCon actually had the US President elected by the Senate and not the Electoral College.

Donna Hardeman says:

February 25, 2011 at 4:22 pm

@BobG – not only should it be taught this way in undergraduate school but, more importantly, in law school. During law school, I was taught about precedent, i.e. what the Supreme Court had decided and the line of cases following a certain decision. It never occurred to me then – of course, what does anyone know at that age – that a more basic understanding of what it actually means would be the best foundation for our interpretation of laws and the practice of law. What we have now seems to be a game of “telephone” played by the jurors “du jour.” I would even go a step further and make a requirement that everyone arguing in front of SCOTUS be required to address the intention of the Founders – then they can talk about their beloved precedent!!

Susan says:

February 25, 2011 at 5:36 pm

I stand and cheer Donna I could not have said it better, and coming from one who attended law school it carries just a bit more cache!

Ralph T. Howarth, Jr. says:

February 25, 2011 at 6:37 pm

Thanks Donna on voicing what is the issue of Judicial Review. And the following is English Common Law procedure on interpreting law that American Lawyers used to do up to the late 1800s:

Blackstone provided an explicitly numbered serial order of steps toward carrying out those “intentions at the time when the law was made.”

First, the words were “to be understood in their usual and most known signification.”
In short, the judge was not to interpret the words de novo in whatever way grammar and the dictionary would permit, much less according to later beliefs or usage.
Only when “words happen to be still dubious” was it permissible, according to Blackstone, to go on to the …

Second step: try to “establish their meaning from the context.”
It was the original cognitive meaning, not intent in the sense of psychological motivation or philosophical values, which was being sought.

Third step: determining what was “in the eye of the legislator,” only as a guide to the cognitive meaning of words still undetermined by the first two steps.
Only where words still had no significance or “a very absurd signification” the…

Fourth step: “we must a little deviate from the received sense,” so that a law, for example, against shedding blood in the street should not apply to a surgeon treating an injured man where the fourth step is not admissible if violating the first three steps. It did not involve conceiving new meanings, whether based on later insights, judicial conscience, or the philosophical values presumed to motivate the original law.

These themes elaborated by Blackstone and Holmes continue to be echoed by contemporary advocates of judicial restraint. For example, the self-disciplined judge, according to Richard Posner “is the honest agent of others until the will of the principals can no longer be discerned.”

from an article by Thomas Sowell, Judicial Activism Reconsidered

Jon says:

February 25, 2011 at 9:28 pm

I wonder does anybody know roughly when SCOTUS started using precident to decide cases? I would like to read cases that reflect the difference in methods.

Thanks

Donna Hardeman says:

February 25, 2011 at 10:01 pm

I’m gonna miss you guys for a week. Going to a legal convention. I will print up everything and read it and join again in a week’s time.

Debbie Bridges says:

February 25, 2011 at 11:06 pm

I would have thought that Studying the Constitution would be the very FIRST course taught in law school!

Thank you for starting this 90 day study. I enjoyed the Federalist Papers immensely as I learned so much. I have enjoyed reading and commenting some so far and look forward to learning more about the Constitution. What a great site this is. I have recommended this site to my friends on facebook. Hopefully they will check it out.

Ralph T. Howarth, Jr. says:

February 26, 2011 at 12:42 am

Jon, precedents are actually part of the English Common Law under the principal of Stare Decisis: Latin for “let the decisions stand”. It has been customary of judges to want to avoid over turning peer decisions if it can be helped. Which is rather sound if you think about it. How can you have justice when judges make all sorts of opinions about the law to where litigation becomes more of a “slot machine” of chance?

The real question you want is when did the SCOTUS depart from the English Common Law of interpretation and took up rather the Case Law method to where the actual upholding the originalism of the law is kicked to the curb? I do not think that is a cut-and-dry answer as it happed by hook and by crook but a strong authority on this I would say is James R. Stoner, Jr., author of Common-Law Liberty: Rethinking American Constitutionalism and Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism.

What I do know is that cerca 1870′s was a turning point where the practice of observing the English Common Law was dropped but only borrowing some of the procedural rudiments of the English Common Law. This is a problem. Why? Because doing so has the end run affect of amending the US Constitution by changing the legal underpinnings of terms and language used in constitutional law without having been put forth as a measure of ratification by 3/4ths the states. The states never consented to any such legal manuevering. I will post here if I find something more specifc in due course.

Scott Miller says:

February 26, 2011 at 4:49 am

Mr. Howarth, why do you use “ConCon” over the phrase “Constitutional Convention”? I mean no disrespect, sir, but I find the use of “ConCon” rather than “Constitutional Convention” offensive and rather disrespectful of our Founding Fathers…

Ralph T. Howarth, Jr. says:

February 26, 2011 at 3:14 pm

ConCon is a short phrase used in political commentary, debates, academia and journalism. And it has been used by those who revere the intents of the Founding Fathers so I had no idea that anyone who would be offended by such usage. In this day and age, I had just learned last night that BRB means “be right back” and TTFN means “ta ta for now” from doing an IM exchange in regards to arranging renovation on a home.

But I see what you mean as I have had people who do not often read newspapers and other forms of media coverage where the mode is to introduce a person or place first, and then resort to an abbreviated form like a person’s last name later in the text. Immediately upon hearing/reading the abbreviated form, the hearers take it as disrespect. They partly do this to keep the text short as no wonder they have to squeeze everything in columns and avoid over running onto another page. The same applies here. Several times I had to cut my writings down to avoid over running the window size of the posting here, in case you did not know, there is a 3000 character limit.

So my usage is out of habit by reason of the mode of exchange here. But no intents of disrespect on my part. Sorry for my being terse. But you will find me holding the founder’s in admiration and wonder; and I have been alleged to be a founder father worshiper by those who take them lightly. I also suffer some from interpersonal relations for health reasons: I will expend myself at a task at hand to complete it at the expense of amenable relations on the hows and whys what I am doing matters in part because I may be in shock at the time. For this cause, I may take extra time out in writting something to make it seque well with a thread, and if I am not quick enough, then the moment changes and now what I wrote does not fit as well and has to be rehashed again.

March 7, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Article I, Section 02, Clause 3 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 02, Clause 3, W.B. Allen, Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 02 Clause 3, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XXVI, Constitutional Amendment XXVI, Declaration of Independence, The Articles of Confederation, W. B. Allen PhD

Guest Essayist: W. B. Allen, Havre de Grace, MD

Article 1, Section 2, Clause 3: 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.

Amendment 14, 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.

Amendment 26, Section1. 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.

The so-called “three-fifths” clause of the U. S. Constitution is actually a provision for determining the number of representatives allotted to the several states in the Union. However, it provides the most frequently circulated charge against the Constitution. Simply put, for a long time almost everyone in America has misunderstood the three-fifths language in the Constitution. Here we speak directly and only to the origin of that language, in order to correct the record. We begin, however, by listing the Fourteenth Amendment and the Twenty-Sixth Amendment, because of their implications for the original text. Note that the Fourteenth Amendment supersedes the three-fifths clause, in particular directly tying the rule of representation to eligibility to participate in elections. That was not the case originally. Moreover, it ties eligibility to participate in elections (in relation to penalties for the denial of that privilege) to an age of majority listed as “twenty-one years of age.” However, the Twenty-Sixth Amendment establishes the age of eligibility for voting at “eighteen years of age” without having altered the language of the Fourteenth Amendment. Thus, once again the eligibility to vote has become disconnected from the rule of representation, as it was in the original constitution.

Now, regarding the three-fifths clause, the general account is that the Framers regarded black people as only three-fifths human (whatever that might mean). That, in turn, is supposed to prove that the Framers were bigots and that their opinion of black people was low indeed. The palpable surface of the framing documents reveals the truth. Consider what they did in fact mean, then judge how well the Framers confronted their moral dilemmas.

In April, 1783 (not 1787) in the Confederation Congress the three-fifths compromise emerged after six weeks of debate. An eighth article was proposed for the Articles of Confedration, apportioning expenses for the Confederation on the basis of land values as surveyed. There the discussion opened, only to reveal how difficult it was to assess land values 2

and, in the rude conditions of those times, to produce accurate surveys. Thus, they resorted to numbers instead, speaking of population as a rough approximation of wealth. Taking the numbers of people in the respective states, they hit upon the following language:

expenses shall be supplied by the several states in proportion to the whole number of white and other free inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes in each state.

What, then, does three-fifths apply to? Slaves, carefully and legally defined. But re-read the opening clause, delimiting “the whole number of white and other free inhabitants.” To whom does that apply? Surely not whites only, nor only males, since “every age, sex, and condition” is further appended. Clearly, they aimed at every free human being, white and non-white. As is generally known, the only significant number of free non-whites in the United States in 1783 were American blacks (another 10,000 of whom were emancipated between 1776 and 1787). There were not in the United States of 1783, for example, any Asians. Thus, these legislators included American blacks among the free inhabitants; the following three-fifths clause applied not to blacks generically but rather to persons in the peculiar legal relation of slavery. Three-fifths of the number of slaves were counted, not in terms of their humanity but with respect to their legal status in the respective states.

The Confederation Congress fully affirmed the humanity of American blacks through the language of “white and other free inhabitants.” Was that recognition of humanity withdrawn when this same language was taken up again in 1787 in the Constitutional Convention? Here is the provision:

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 lapse of four years has brought changes. But what are the changes? On the surface the changes are primarily editorial, introducing economy and exactness of language. As any composition teacher would point out, the first thing to notice is the elimination of redundancy. Why should it be necessary to say the “whole number of white and other free inhabitants, of every age, sex, and condition,” when the “whole number of free persons” says the same thing? Further, “adding three fifths of all other persons” at the end is less awkward than the inclusion clause of 1783. Finally, the substitution of “Service” for “servitude” continues the liberal impulse of 1776. Moreover, this rule of representation says nothing about who gets the right to vote. Thus, 1787’s freedom language includes women and blacks; it does not exclude them.

W. B. Allen

Havre de Grace, MD

Posted in Analyzing the Constitution Essay Archives | 18 Comments »

18 Responses to “February 24, 2011 – Article 1, Section 2, Clause 3 of the United States Constitution – Guest Essayist: W. B. Allen, Havre de Grace, MD”

Scott Miller says:

February 24, 2011 at 1:20 am

Wasn’t the three fifths clause also intended to prevent slave owning states from gaining an unfair advantage over free states by preventing them from including slaves in a count of a state’s population and giving the slave states permanent control of the House of Representatives?

This would go along with the “life, liberty, and pursuit of happiness clause of the Declaration of Independence which was originally written as “life, liberty, and property”, but changed to “life, liberty, and happiness” to prevent slave states from making the case that the word “property” must include slaves.

Between the two wouldn’t slavery have become constitutionally protected and recognized legal institution? It would have given the slave states permanent control of Congress because the slave state would have used control of Congress to insure that all future states admitted to the Union would have been slaves states, would it not?

Joe Short says:

February 24, 2011 at 9:11 am

Why is the “indians not taxed” language included?

Brad says:

February 24, 2011 at 12:22 pm

“including those bound to Service for a Term of Years”

Of whom does the Constitution refer? These individuals do not appear to be identified as slaves, but rather a specific legal class of free persons.

?prisoners…? debtors?…

Toni says:

February 24, 2011 at 12:46 pm

I think the majority of those who misunderstand or misinterpret this whole three fifths thing either do it on purpose to use to their advantage, or simply have not done the research to find out for themselves.

The first category knowingly and willingly try to change what was in the hearts of our founding father’s. This frustrates me to no end. I believe for America to continue to be free we must keep in mind the hearts and minds of our founding fathers. We must take the time to know their morals and deeply held beliefs.

We must also keep in mind that they were not from our time. We cannot judge them based on who we are today. We must see them and understand them in their own time for who they were then and what our country was like then. I love this stuff.

We’re having our First Patriot’s club on March 4th and I’m so excited to teach these young Patriots the constitution and their founding father’s. I believe we must know them as well as the document to gain true understanding.

Susan says:

February 24, 2011 at 1:08 pm

Brad, at the time of the writing I think there was still indentured servitude. This was a contracted period of servitude for the payment of transport and relocation to America.

Ralph T. Howarth, Jr. says:

February 24, 2011 at 2:42 pm

@Joe Short: Indians not taxed are the Indians who ware not particularly US Citizens. The Indians were and are a protectorate of the federal government where the Indians were treated as a foreign country. It is interesting to note that during the Treaty of Paris meetings led by Benjamin Franklin that Franklin secured the welfare of the American Indians from the European powers citing that they were a people “not able to defend themselves.” The Treaty of Paris then kept Europe out of the affairs of the American Indian. Had this not been done; the perpetual European wars may have persisted to intermeddle with the American Indian affairs. As was then, and in the years afterward, there were intents among the British Crown to keep arming the American Indians and incite war with the American “rebels”.

@Brad: bound to Service for a Term of Years are those of indentured servants primarily from Europe. These are people who either contracted their fare of transport to the states or were in debt already and arrangements were made with the shipping companies conveying goods of trade to the Americas. Many were debtors who were subject to the ill-gotten practice of being jailed for their debt where they could not work off their debt and so in a somewhat not-by-choice fashion were made indentured servants to the shipping companies. The shipping companies then would sell the contract of labor in the Americas to bidders. The indentured servants typically served a term of no more than seven years under the Judeo-Christian ideal of a seven year’s release.

Brad says:

February 24, 2011 at 4:23 pm

@Susan and Ralph: Thank you for the clarification. This dialogue is wonderful.

Donna Hardeman says:

February 24, 2011 at 6:25 pm

You guys should look at David Barton’s explanation on utube. Fabulous.He explains how Frederick Douglas realized the 3/5 clause was an anti-slavery clause.Talks about Georgia, NC & SC wanting to count all their slaves so they could have more votes.Northern states came back saying – you want to count your “property” we’ll count our horses and goats!(All from the Constitutional Convention notes). The neat thing he points out is that the 3/5 clause actually applied to the population of slaves – not each individually meaning that a state would have to have 50,000 slaves to enable them to get one representative. That clause is so cool because it’s true – everyone misunderstands it – and it’s fun to set them straight!!

Barb Zakszewski says:

February 24, 2011 at 11:36 pm

Interesting, so women and blacks had the right to vote since the beginning?? Yet were denied that right because of incorrect readings of the original Article within the Constitution? Am I understanding this correctly? that is amazing, if it’s true!! I had to re-read the explanation regarding the 3/5 clause several times, but it does make sense now.

Ralph T. Howarth, Jr. says:

February 25, 2011 at 12:25 am

@Barb: That is correct; but the right to vote for women in particular was not uniform among the states. If you think about it; in order for their to be a women’s suffrage amendment to the U.S. Constitution there had to be 3/4ths states that ratified the amendement. Do you think that all of a sudden 3/4ths the states went from seeing the error of their ways to suddenly advocating a woman’s right to vote?

In colonial times, for example, Pennsylvania voting rights were orchestrated around property ownership to land holders. Men were the primary land-owners of estates; but if a woman’s husband passed away, then the property fell to her and she then had the right to vote in his stead. Later, states like Idaho made law that give women the right to vote without any such land-holding impediments and gave an cablanche right to vote for women. They did this to encourage women to risk pioneering the unclaimed lands mostly populated by men and populate the territory.

Ralph T. Howarth, Jr. says:

February 25, 2011 at 5:27 am

The 3/5ths clause is a penchant play on political correctness.

Michele Backmann was right. The founders did wrestle with the slavery issue.

During the constitutional convention [or ConCon] debates August 21, 22, 1787 the premise was that each state was an independent nation and the auspices of the convention was not much more than a trade union. When it came to the issue on slavery there certainly were a variety of views and it was recommended to ban the importation of slavery and/or abolish slavery; but it was passed over to the states as a state matter as the purpose and scope of the convention was not that of religion, morality, or humanity. The original submitted draft of the Constitution brought to the ConCon 1787 actually forbade outright the blocking of the slave trade and forbade imposing a tax provision on the importation of slaves, so it appears. The draft evidently was revised to instead postpone the blocking of the slave trade and allowed a tax on the trade instead of none. So the end result of the draft constitution going into the ConCon was a marginally tougher instrument on slavery that what was proposed.

As James Madison made record in his ConCon notes, Mr. Rutledge noted: “Interest alone is the governing principal with nations. The true question at hand is whether the Southern States shall or shall not be parties to the Union.” Mr. Ellsworth noted: “The morality or wisdom of slavery are considerations belonging to the states themselves.” And, “[t]he old confederation had not meddled on this point, and he did not see…bringing it within the policy of the new one…” Mr. Sherman also noted that the slavery issue, being the purview of the several States, was already addressed by the abolition movement “and that the good sense of the several States would probably by degrees compleat [the abolition].”

So what we have on the table was the making of a stronger union versus a very loose, virtual one. The confederate congress really had no power to speak of and figuratively had to have permission of ten states to sneeze, and then had to have permission of ten states again to get a handkerchief. Yet, if the abolition of slavery was promulgated in the Constitution, then the southern states would not have ratified it. Hence, the 3/5ths compromise was retained in order to deter the southern states from not ratifying; and by implication, leaving the union. And abolition was allowed passively by the Constitution, by leaving with the states their own accord to abolish slavery as some statesmen like Mr. Sherman thought the abolitionist movement was already showing much success in that direction. Mr. Pickney also concurred thinking the Southern States will eventually block the importation of slaves of their own volition.

A comparitive could be if the USA, Canada, and Mexico took NAFTA and upgraded to a federal union while cartels still exist.

Susan says:

February 25, 2011 at 9:51 am

I know that the women of New Jersey voted in elections up until about 1800 when sufferage was rescinded.

Shelby Seymore says:

February 25, 2011 at 11:56 am

Personally, I am so annoyed with the excuse or the complaint, “The founding fathers only saw blacks as three fifths of a person.” No. Stop. Grow up. Fredrick Douglas figured this out. The founders put the three fifths clause into the Constitution so that the South wouldn’t have so much power. If slaves were counted as a whole person the founders knew they’d never get rid of slavery. It was a way to undermine slavery, not keep it going. Do your homework.

yguy says:

February 25, 2011 at 12:16 pm

I think not. I see nothing in A1S2C3 that addresses suffrage, which was, like citizenship, left to the states to deal with originally.

Ron Meier says:

February 25, 2011 at 2:03 pm

My take from what I read above, ignoring the “did they or didn’t they” this or that, is that the founders knew they couldn’t get rid of slavery in the new Constitution because the southern states would then not likely approve the Constitution. They figured that the growing abolition movement would eventually take care of the problem in the individual states, without federal involvement, so let’s not upset the cart and let’s get the Constitution we need into law now so the greater benefits would accrue to the weak, but growing nation. Let it be a state problem that will resolve itself. Unfortunately, they were not correct in this assessment, and the Civil War erupted 80 years later. It’s like life; you give it your best shot with your most pragmatic decision based on the greater good, and pray that you are making the optimal choice with respect to the things over which you have little or no control.

Shannon_Atlanta says:

February 25, 2011 at 6:49 pm

Great dialogue!! Learning alot here.

Ralph T. Howarth, Jr. says:

February 25, 2011 at 9:23 pm

Another tid-bit people don’t know is not only were the several states under the AoC considered separate countries, and that the Crown of England issued a treaty for each and every colony than that of the gamut moniker of “these United States of America”, is that Quebec was invited into the union twice. Quebec was simply viewed as another colony of British pesuasion…though it was also under control of the French for a time. Quebec was invited first under the AoC and invited a second time during the ratification of the US Constitution. Quebec choose not to but may very well have been another state in the US. To date, the border between the US and Canada has been arguably the most peaceful border between two countries in the history of the world. In WW1&2, and much of the NATO alliances thereafter, Canada has continued to be an ally. How Americans and Canadians managed border disputes is remarkable.

Janine Turner says:

February 28, 2011 at 12:39 pm

Thank you, Mr. Allen for your enlightening essay! It is truly informative and powerful in it’s honest representation of what is to be interpreted from both the Articles of Confederation and the Constitution on this subject. Your essay is a fabulous reference for those who choose to study our founding documents. Firstly, I am grateful that our founding fathers did not use land values to account for representation and instead used populace. Secondly, I am grateful for your interpretation and clarification of the 3/5 clause. Thirdly, I am eternally grateful that our founding fathers had the insight to leave to their posterity the right to amend the Constitution. They knew changes were going to be needed.

March 7, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 02, Clause 1-2 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 02, Clause 1-2, Horace Cooper 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 02 Clause 1-2, Federalist No. 52, Horace Cooper

Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

Article I, Section 2, Clause 1-2

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.

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.

The House of Representatives or the people’s house was created by design to be the most democratic body and the legislative chamber closest to the public. It is the larger of the two chambers and its elections the most frequent at the federal level.

In his essay on the “Original Contract” philosopher David Hume in 1752 said “The people, if we trace government to its first origin in the woods and deserts, are the source of all power and jurisdiction, and voluntarily, for the sake of peace and order, abandoned their native liberty and received laws from their equal and companion.” The design and make up of the House reflects this view.

James Madison mentions in Federalist #52, the design and make up of the House of Representatives is predicated on the notion of a republican form of government. As Madison points out: “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.”

“…Members chosen every second year” ensures that House members will be appropriately responsive to the public. If the elections were more frequent there is the risk that House Members would stay in a perpetual election mode – constantly campaigning and less able to exercise their judgment and wisdom. On the other hand if the elections were held less frequently there was the risk that the House Members might exercise their personal judgments too and simultaneously the public might find it harder to hold them accountable due to the length of time between elections as passions and memories subside.

The two year cycle provides a happy medium that ensures accountability while also giving House members some limited ability to juxtapose their own judgment on policy matters.

The next provision establishes the Constitutional requirements for being a voter in a federal House election. The founders could have established an independent requirement or it could have authorized Congress to do so. Instead they took a third way – establishing that whatever voting requirements the states created for their own state assemblies would be used for the Federal House of Representatives election. The provision specifically requires that federal voters meet the same requirement needed to vote for the larger branch of the state legislature – typically the state House.

Thus, if a state required you to be a resident for 5 years and a property holder in order to vote in state legislative elections, that standard would apply in order to vote in federal House elections. Conversely if another state required voters merely to pay a fee in order to vote in state legislative races then there could be no additional restrictions for voting in the federal elections.

Instead of states being able to interfere with federal elections or vice-versa, the citizens in each state find that the requirements for voting for state and federal elections are identical.

The Constitution sets the age for House members at 25 years for a few reasons. The age of 25 recognizes that younger individuals have a natural right to influence the political process and participate in the decision making while ensuring that all of those serving in government possess the necessary maturity, experience, and competence to perform effectively.

The citizenship requirement is equally interesting. The Constitution does not require the individual to be a “natural born citizen” – only a citizen of the U.S. for 7 years. While Congress has the authority to define the requirements for U.S. Citizenship, the Constitution only requires that a House member meet that standard for at least 7 years.

At the same time that the individual must be a citizen of the U.S. for 7 years, the requirement to represent a district within a state is not 7 years as a state resident. Note that the standard for the candidate is that he or she must be “an inhabitant” of the state – i.e. a person who has established his domicile. Often disputes arise over whether a candidate actually lives in the district that he or she is running in. But there is no legal recourse at the federal level – the Constitution only requires that he or she live in the state not in the county or district where the federal election is being held.

This section endorses a notion that is replete within all parts of the Constitution – a republican form of government ensures the people’s liberty is maintained. In this case the liberty of the people is safeguarded through clearly defined rules for holding elections and candidate requirements.

Horace Cooper is a senior fellow with the Heartland Institute http://www.heartland.org/

Posted in Analyzing the Constitution Essay Archives | 19 Comments »

19 Responses to “February 23, 2011 – Article I, Section 2, Clause 1-2 of the United States Constitution – Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute”

Susan says:

February 23, 2011 at 9:06 am

“The greater the power the shorter the term should be”, wow! how true! Best argument I’ve heard for term limits if I ever heard one!

Brad says:

February 23, 2011 at 9:29 am

Janine and Cathy,

Are you going to be writing your daily essays again? I miss your wisdom that you shared with the Fed Papers.

Shannon_Atlanta says:

February 23, 2011 at 10:16 am

I was wondering , since each state can make its own rules on voting, would it be upheld as Constitutional if my state of Georgia decided one must have earned income to vote?

Janine Turner says:

February 23, 2011 at 10:57 am

Mr.Cooper, I thank you for being our guest scholar and dedicating your time
to write this most informative essay. Isn’t this fun?!
I learned so much. I realize that when I read the Constitution there is so much to
absorb and thus I skip over certain parts such as the requirements for the “voter”
are maintained at the state level. I always thought this section dealt with requirements for the representative only, yet, I now know it also deals with the requirements of the voter!
Also interesting that the representative merely has to live in the state
but not the district. Fascinating!
The quotes from Madison and David Hume resonate as do your words in the closing paragraph, “a republican form of government ensures the people’s liberty is maintained. In this case the liberty of the people is safeguarded through clearly defined rules for holding elections and candidate requirements.” Is the constitution relevant?
Yes!!! Thanks Mr.Cooper

Mary Oprea says:

February 23, 2011 at 11:15 am

It’s interesting that our US Reps can be as young as 25. I wondered how many were actually this young, so I did some research.

According to Wikipedia (“List of current members of the United States House of Representatives by age and generation”), we have 0 reps from the Millennial Generation who would be in that age bracket. The majority of our Reps are Boomers, born from 1943-1960. Only 28% of the Reps are younger than the Boomers (“Generation X”).

It looks like our younger generation are busy getting their education (which usually requires more than 4 years these days) and establishing their homes. However, the cost of running in an election could be an impediment also.
—————

GI Generation:1901 – 1924 (1 rep)
Silent Generation: 1925 – 1942 (58 reps)
Boomer Generation: 1943 – 1960 (254 reps)
Generation X: 1961 – 1981 (120 reps)
Millennial Generation: 1982 – 2003 (0 reps)
Vacant – 2

Ron Meier says:

February 23, 2011 at 12:16 pm

Question for Mr. Cooper. The idea of a two year term for the “people’s house” is that voters can throw them out if they are not representing the voters. Some of our representatives have spent their entire work life in the House. Many of us believe that service as a member of the House should not be a career choice. In my case, I think one should not spent more than half an estimated 40 year work life as a career politician. Are we barking up the wrong tree with respect to the original intent of the writers of the Constitution when we press for term limits, since the representatives must be representing the voters as the voters wish if they are reelected for more than 20 terms?

Cutler says:

February 23, 2011 at 1:00 pm

Thank you very much, Mr. Cooper for your insightful essay. I must now turn my thanks to Mr. James Madison in his quote: “the greater the power is, the shorter ought to be its duration.” It is completely this attitude that the founding Fathers had when forming this country, not “Just how much government intrusion will the American public tolerate?” Washington (D.C.) has rotated a complete 180 degrees from limiting power originally to seeing how far it can stretch it while still giving lip service to the Constitution.

Shelby Seymore says:

February 23, 2011 at 4:11 pm

I agree with you Cutler. Obama (and his wife!) have overstepped their boundries one to many times for my taste, yet nobody sees this. It seems with this president four years is too long in power. The main problem is that the people are so unaware of these happenings they can’t see straight into the trap they are walking into. I believe the entire system needs to collapse so we start over, it’s not the ideal choice, but it will open people’s eyes.

H Cooper says:

February 23, 2011 at 4:47 pm

Shannon asks an interesting question as to whether the State of Georgia could require a person to have “earned income” in order to vote in the state assembly and thereby require a similar rule for federal elections. While no longer applicable today due to the adoption of the 15th Amendment and the Voting Rights Act of 1965, when the Constitution was first created states had broad power to determine what constituted an eligible voter. Today the 15th Amendment and the Voting Rights Act effectively mean that states have limited ability to restrict voting because the VRA prohibits states from imposing any “voting qualification or prerequisite to voting, or standard, practice, or procedure … to deny or abridge the right of any citizen of the United States to vote on account of race or color.”

Scott Miller says:

February 23, 2011 at 7:23 pm

It would be nice if there was a printable version of each essay available as well as a version that could be emailed to freinds and family not aware of Constituting America’s study of the U.S. Constitution!

a guy says:

February 23, 2011 at 8:15 pm

Are you actually suggesting that we take voting rights away from legal, law abiding citizens if they are without income? What if they’re disabled or going to school or college on social security survivor benefits?

And personally, though I am anything but a supporter of Obama, the last thing I want to see is for our entire system to “collapse”. Things are bad enough as they are now.

Barb Zakszewski says:

February 23, 2011 at 8:21 pm

thanks to Mr. Cooper for his insightful analysis of this Article and Section and putting it into an historical context. 2 year terms for House of Representative members, 2 years being seen as a happy medium between perpetual campaigning and becoming less responsive to the people they represent. Unfortunately, most House members today are more concerned with keeping their jobs and are in perpetual campaign mode, then in doing anything of substance. I’m wondering if maybe a Constitutional amendment to increase the term of a House of Representative to 3 or 4 years might be in order. Get them to focus on the tasks at hand instead of worrying about re-election, at least for a little while.

ThreeDogs says:

February 24, 2011 at 1:41 am

“the greater the power is, the shorter ought to be its duration.”

Was there general agreement on this among the founders?

If so they must have thought that the most powerful body would be the the House, followed by the Executive branch, followed by the Senate and then the Judicial branch (lifetime appointments)!

Seems to me that the Judicial has over time become the most powerful.

What do you think?

Ralph T. Howarth, Jr. says:

February 24, 2011 at 5:36 am

…and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

I have always taken that clause to be speaking of the Electoral College Electors. There had to be qualifications for the Electors of the Electoral College too such that the qualifications of the Electors must be the same as that of the most numerous branch of the state’s legislature as Electors are those who cast their ballots for the President at the state capitol. From there, the ballots of the Electors collectively from each state are sealed and sent to the Congress to be opened up and read aloud how many votes from that state for a Presidential candidate.

yguy says:

February 24, 2011 at 4:40 pm

It needs to be understood that while we are indeed endowed by our Creator with certain unalienable rights, suffrage is not among them; and there is certainly nothing wrong with denying parasites the right to vote themselves even more largesse from the public treasury.

Which is not to say people in such circumstances as you mention are all parasites. I’m just making a more general point.

Shelby Seymore says:

February 25, 2011 at 11:58 am

Agreed ThreeDogs. The Judicial branch used to be the least powerful. In fact, people would leave to state positions to gain more political power.

Robert Saunders says:

February 26, 2011 at 6:20 pm

Please explain the wording, “and who shall not”, when elected, be an inhabitant of that state in which he shall be chosen.

Susan says:

February 26, 2011 at 10:33 pm

It is formal 18th century usage for if you haven’t lived you shall not be elected to represent the place.

Janine Turner says:

February 28, 2011 at 12:15 pm

Brad,
Thanks for asking .. I would love to write daily essays.. I am working toward that goal. For now, I am having fun blogging thanks for joining us!! Isn’t this fun?

March 7, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Article I, Section 01 of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article I, Section 01, Charles K. Rowley, Ph.D. 2. The Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 01, Article II, Article III, Charles K. Rowley PhD, Connecticut Compromise

Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

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

The Constitution of the United States established three separate branches of the federal government, namely the legislative branch, the executive branch and the judicial branch. Superficially, therefore, one might think that it was a matter of chance as to the order in which each branch would be outlined and defined in this founding document. Such thinking, however, would be incorrect. The Founding Fathers did not write the Constitution without careful reference to the prior scholarship of Great Men, and without reference to the history of all prior republican forms of government. James Madison of Virginia, in particular, drawing heavily upon materials sent to him from Paris by Thomas Jefferson, made certain that the Constitution evolved from the past experience of all the republics that had failed, and would not be written out (as would later be the case with the disastrous French constitution) as an act of constructivist rationalism.

John Locke’s seminal book, Two Treatises of Government – the book that provided the intellectual justification for England’s Glorious Revolution of 1689 – provides the rationale for placing the legislative branch of government at the very beginning of the Constitution: ‘The great end of Men’s entering into Society, being the enjoyment of their Properties in Peace and Safety, and the great instrument and means of that being the Laws establish’d in that Society; the first and fundamental positive Law, which is to govern the Legislative it self, is the establishing of the Legislative Power;…This Legislative is not only the supream power of the Commonwealth, but sacred and unalterable in the hands where the Community have once placed it; nor can any Edict of any Body else, in what Form soever conceived, or by what Power soever backed have the force and obligation of a Law, which has not its Sanction from that Legislative, which the publick has chosen and appointed.’ (Locke, II, para. 134)

The Founding Fathers wisely embraced Locke’s argument establishing the legislature as the central pivot of any social contract through which individuals would consent to place their lives, liberties and properties under the protection of a civil or political society. It is no accident that Article I of the United States Constitution deals first with the legislature. Although commentators frequently describe the three branches of government as ‘separate but equal’, the Constitution is silent on that issue. Although the Founders designed the three branches to be inter-connected, each branch checking the power of the others, they surely relied on Locke’s Second Treatise in recognizing the legislative branch as the fulcrum of the social contract.

The decision to separate the three branches, as defined in Articles I-III, by no means was set in stone when the Convention first assembled in Philadelphia. James Madison, in particular, was deeply impressed by the 1765 Commentaries of William Blackstone, who favored a single unified branch system: ‘It is highly necessary for preserving the balance of the constitution, that the executive power should be a branch, though not the whole, of the legislature. The total union of them, we have seen, would be productive of tyranny; the total disjunction of them for the present, would in the end produce the same effects, by causing that union, against which it seems to provide. The legislature would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the rights of the executive power.’ (Blackstone, Commentaries, 1, 149)

Following up on this argument, James Madison while awaiting the arrival of other delegates, etched out a Virginia Plan that envisaged one branch only – the legislative branch. This branch would be responsible for appointing the executive and the judiciary, although these legislative agents jointly would be empowered to veto legislative decisions under certain circumstances. However, even such vetoes would be subject to legislative override by some unspecified super-majority.

According to the Virginia Plan, there were to be two chambers of the legislature (a bicameral legislature). Each state would be represented in each chamber in proportion either to its financial contributions or to its number of free inhabitants. The small states perceived such an arrangement to constitute an inordinate potential threat to their liberties by some effective coalition of the more populous states. In the Connecticut Compromise of June 29, 1787, the delegates abandoned the Virginia Plan in favor of a bicameral legislature in which the lower chamber (The House) would be based on state populations and the upper chamber (the Senate) would have equal representation. In reaction to this Compromise, James Madison etched out an ultimately successful case for separating the three branches of government as added checks and balances against the greatly-feared forces of faction.

The question whether the legislature should be composed of a single chamber (unicameral) or two chambers (bicameral) was far from fully resolved at the outset of the Convention. When George Mason proclaimed to the gathered delegates that ‘the mind of the people of America’ was ‘well settled’ in its attachment to the principle of having a legislature with more than one branch, he was not truly asserting that the matter was beyond contention. True, eleven of the thirteen states enjoyed bicameral legislatures. However, the Continental Congress consisted of but a single chamber and Pennsylvania, host to the Convention (and the home of the First American, Benjamin Franklin), operated with a unicameral legislature.

Ironically, the major forces in favor of bicameralism at the Convention were the example provided by Britain on the one side and the colonial experiences of the People on the other. On the one side – and despite the War of Revolution – there lingered a long-standing admiration for the British constitution, at least in its mythic, uncorrupted, form. From this perspective, the vision of a truly balanced legislature, government, and society gave special authority to the British model. On the other side, most of the colonies had already developed an upper legislative chamber out of their governors’ councils, which typically represented the concentrated power of great landlords and wealthy merchants.

For persons of property, as all the delegates to the Convention assuredly were, an upper chamber that might check the predations both of a covetous popular assembly and of an aggrandizing executive was especially attractive. For the populist-minded, the check provided by the upper chamber on executive powers was also not without its attractions. Thus, the case for bicameralism could be argued both from a quasi-aristocratic and from a profoundly-republican point of view. Thus it came to pass that discussion of a second upper chamber presumed that its’ membership would be smaller, that members would hold longer terms of office, and that members would be more select, than in the case of the lower chamber.

The lower chamber (the House of Representatives) thus came to be viewed as an embodiment of the popular will, an assembly of representatives who would come close to being reflexes of the people. Such a body was widely viewed as a necessary foundation of popular government based upon consent. Standing alone, however, the reflexes of such a body might become as passionate, tyrannical and arbitrary as those of the people that it represented. An upper chamber (the Senate), capable of checking the foolish or irrational impulses of the population at large, could be viewed as an essential safeguard to the lives, liberties and properties of those who otherwise might be exposed to the untrammeled excesses of the popular will. The later descent of the French Revolution – with its over-simplified constitutional settlement – into tyranny, bloodshed, and ultimately into the dictatorship of Napoleon Bonaparte, would amply justify these reservations advanced so serendipitously in 1787 by delegates to the Philadelphia Convention.

Eventually, the grand design fell into place in Philadelphia and, following a great national debate, was ratified into a magnificent social contract. Article I, Section 1 of the United States Constitution merely sets the stage. The full play unfolds in the remainder of this most precious of all constitutional documents.

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). For further details see www.thelockeinstitute.org

22 Responses to “February 22, 2011 – Article 1, Section 1 of the United States Constitution – Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia”

Ron Meier says:

February 22, 2011 at 12:39 am

There are some excellent points in this essay to keep in mind as we watch events develop in the Middle East. We can see the passion of the people at work, but are there checks in place that will “safeguard the lives, liberties and properties of those who otherwise might be exposed to the untrammeled excesses of the popular will.” Also interesting to watch is how the checks in the state systems work to constrain the passions of the populace in Wisconsin and other states that will follow in Wisconsin’s footsteps as state budget problems are addressed. Very timely that we should be starting this study at this historical moment.

Shannon_Atlanta says:

February 22, 2011 at 10:16 am

Thank you Dr. Rowley. It amazes me that these men created our government in a timely and relatively quick manner. Compare that to today where it takes months and months for our “leaders” to pass a budget; I am always amazed at what all they accomplished-filled with God’s will in my humble opinion!

Susan says:

February 22, 2011 at 10:18 am

I found it interesting the evolution of the Senate. Out of the House of Lords via the wealthy to a voice of the States as a corporate entity as a counter balance to the tendency of democracies to devolve into mob tyranny.

Shannon_Atlanta says:

February 22, 2011 at 11:22 am

Sue, good points. I think many of us feel that our Founders hated the British system. From what I have read, they actually admired many aspects of the government-thus they borrowed from it. They also were well read on the Anglo-Saxon political system, which England had slowly gotten away from; thus men like Jefferson wanted to get some of their ways back-free will, republican government, etc.

Cutler says:

February 22, 2011 at 11:38 am

The relatively novel idea of having the legislative power invested in two distinct houses shows the genius (God’s?!) at work when the Founding Fathers created the House and the Senate.

steve b says:

February 22, 2011 at 4:30 pm

I did not know Pennsylvania originaly had a unicameral legislature. Our Founding Fathers were indeed true statesman. I fear we will never again have the leadership and vision our Founding Forefathers had.

Charles K Rowley says:

February 22, 2011 at 7:02 pm

It is indeed quite remarkable how well educated and knowledgable many of the Founding Fathers truly were. At a time when books were scarce, distances hard to travel, and in a country that had experienced a major internal war, James Madison, Benjamin Franklin and others somehow made the effort to read and understand why past republics had always failed. On that basis they were able to craft a Constitution that would survive at least for two centuries, though now, of course, it is tattered and torn. In 2011, when books are easily available and the internet immediately accessible, how many American politicians, from the President down, are well read in such literature. Until January 2011, how many elected politicians had actually read the Constitution? Sadly, knowledge appears to regress as the opportunities to access it expand. I am sure that Benjamin Franklin would have had an amusing way of making that point!

Ralph T. Howarth, Jr. says:

February 22, 2011 at 7:52 pm

Part of the end run of the bicameral system came out of the right of sufferage. It became a grand principal that it is unjust to demand citizens to obey laws that they have no say in the writting and amending of such laws. So it was that the rights of land owning free-holders that were 90% in the majority at the time balanced against the future influx of non-land holding immigrants that was expected to come. The Founders thought it best that the bicameral system would be predominant land-holders in one house and populist commoners in the other house. This also did away with the “mixed government” feature of Parliament where the caste system of seats designated to caste members of society to represent the various interests of society. Congressmen now are elected upon full popular vote of the electorate in their district regardelss of class.

As for the presupposition that that the THREE branches of government are separate and EQUAL, the legislature is actually the most powerful branch of government. In Federalist #51 James Madison said: “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 legislature indeed is the most powerful branch for it has more checks on the other branches of government than any other branch. First, it passes statuatory law. The executive cannot act nor the judiciary pass judgement without laws to act on. And if the judiciary makes an opinion that is in a quandary with the law, Congress simply can pass more statuatory law. Congress consents to appointments of officers in the other branches; and has the power to impeach and remove the same. Congress has the power to tax and appropriate funds and so can effectively defund any operation of government and is another form of congressional oversight on the other branches of government. At the last, Congress has the power regulate the appellate jurisdiction of the Supreme Court such that Congress may deny the SCOTUS of hearing particular cases among the states. And contrary to popular opinion: judges do not make or repeal laws. Judges simply decide whether or not one party in a case suffers harm from another party and then gives an opinion why they decide as such. Court decisions are not law therefor they are called OPINIONS.

Debbie Bridges says:

February 22, 2011 at 9:01 pm

It is interesting to watch the three branches of Government in today’s political arena. Health Care for instance. This was originally passed in the Legislative but with the change of political power in the House and the will of the people the House has voted to defund it. Hopefully the Supreme court will hear the case and rule it unconstitutional. At the same time though, I worry because the President seems to circumvent the Legislative Branch through Executive Orders and appointing Czars not subject to the normal Advise and Consent process of the Senate.

zac allen says:

February 23, 2011 at 12:11 am

This is an interesting discussion at this very moment in time in this country. We have educators, media pundints, and all sorts of people talking about democracy in action. Our Founders knew through the lens of history, that true democracy , mob rule, was no way to run a government. It eventually destroys the individual, as does collective bargaining.
Representative democracy with a republican form of Government is what they created…. and now we have Progressives trying to undermine that principle. Bi-Cameral houses with each a distinct role. Incredible… isn’t it….. sorry for the skipping around

Charles K. Rowley says:

February 23, 2011 at 8:00 am

Ralph, Debbie and Zac all make great points on the issue of checks and balances and the role of the legislature. Before FDR, the constitution worked well. Then the legislature began to divest regulatory powers to the President and the Supreme Court buckled under the threat to increase its numbers with progressive appointees. In consequence, the balance shifted. Now the President is far more powerful than was ever envisaged, and the Supreme Court offers excessive deference to the legislature when reviewing laws for their constitutionality. Yet, save for a few bad amendments, the Constitution’s wording has not changed. That is the problem. How can America move back to the true Constitution under such circumstances?

Janine Turner says:

February 23, 2011 at 11:45 am

Dr. Rowley, I thank you for your most informative essay!
It is worth noting how our founding father’s based their decisions, regarding the drafting of the Constitution, on two basic principles: knowledge and history.
They were well read and acquainted with what had worked and what had not, in regard to government, in the past. They also were well acquainted with superb political and philosophical works of great minds throughout history. Their prudence was based on practical precedents.
The checks and balances and bicameral legislature are of brilliant design and most relevant to today as we: 1) still practice it today 2) need to vigilantly maintain these principles.
Only with a keen knowledge of our Constitution’s contents can we preserve our liberties. I thank you for your generosity of time, as it helps me to understand more clearly my call to action!

Ron Meier says:

February 23, 2011 at 11:54 am

re Dr. Rowley,
And, add to that the significant increase in the number of Czars in the current White House. This seems to be adding even more power within the office of the President. Should the Congress do something to disallow power to these czars?

Jon says:

February 23, 2011 at 2:24 pm

May I offer a few items in response to “How can America move back to the true Constitution under such circumstances?”
Thomas Jefferson, 1825 in response to William B. Giles who expressed his concern over encroaching federal power.

“I see, as you do, and with the deepest affliction, the rapid strides with which the federal branch of our Government is advancing toward the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and domestic; and that too, by constructions which, if legitimate, leave no limits to their power. Take together the decisions of the federal court, the doctrines of the President, and the misconstructions of the constitutional compact acted on by the legislature of the federal branch, and it is but too evident, that the three ruling branches of that department are in combination to strip their colleagues, the State authorities, of the powers reserved by them…”
“And what is our resource for the preservation of the Constitution? Reason and argument? You might as well reason and argue with the marble columns encircling them. The representatives chosen by ourselves? They are joined in the combination, some from incorrect views of government, some from corrupt ones, sufficient voting together to outnumber the sound parts…”

“We must have patience and longer endurance then with our brethren while under delusion; give them time for reflection and experience of consequences; keep ourselves in a situation to profit by the chapter of accidents… meanwhile, the States should be watchful to note every material usurpation on their rights; to denounce them as they occur in the most peremptory terms; to protest against them as wrongs to which our present submission shall be considered, not as acknowledgments or precedents of right, but as a temporary yielding… This is the course which I think safest and best as yet.”

William B. Giles took Jefferson’s advice; he ran for and won the Governorship of Virginia in 1827.

Jefferson alluding to our success, the law of nature IE; Locke.
“A great revolution has taken place at Paris. The people of that country having never been in the habit of self-government, are not yet in the habit of acknowledging that fundamental law of nature by which alone self government can be exercised by a society. Of the sacredness of this law, our countrymen are impressed from their cradle, so that with them it is almost innate. This single circumstance may possibly decide the fate of the two nations.”. 1800 Thomas Jefferson

Adam’s regarding education, including the law of nature IE; Locke
“Let us tenderly and kindly cherish, therefore, the means of knowledge. Let us dare to read, think, speak, and write. Let every order and degree among the people rouse their attention and animate their resolution. Let them all become attentive to the grounds and principles of government, ecclesiastical and civil. Let us study the law of nature…” John Adam 1765

Ray Simoneaux says:

February 23, 2011 at 2:45 pm

Janine, I found out about Constituting America by watching Freedom Watch. Thank you and your organization taking on the project. I am truly amazed of just how many people I talk with daily, who have never read the Constitution ( I personally have three pocket size editions; home, office and vehicle). I look forward to learn more of the analysis of OUR Constitution!

Dr Rowley, your reply to Ralph, Debbie and Zac is exactly how I feel about the Constitution! I really get frustrated when talking with friends or co-workers who “believe everything the see or hear on the news.” I often get strange looks/comments when those people close to me, hear me make the statement, “Where in the Constitution does it give them (the politicians) the authority to do that?” I have come to the conclusion that they have never read/understood the Constitution, therefore they don’t know what our politicians can/can’t do. Thank you for your assistance to the Constituting America Organization in their project.

Shelby Seymore says:

February 23, 2011 at 4:41 pm

Again, I agree with Cutler. They actually set up this government out of the Bible in Leviticus. This wasn’t a just a remarkable appearance of a government that worked. It’s not the big bang theory! There was Divine Providence and they knew it.

Charles K Rowley says:

February 23, 2011 at 4:47 pm

The insights offered by Janine and Jon are very important at this time. The checks and balances written into the Constitution serve a great purpose in slowing down the popular impulse. But this works both ways. When the political situation becomes bleak, as it surely was prior to November 2010, the checks and balances slow down constitutional recovery. The good constitutionalist acknowledges this and bides his time. Any true reversal of fortune must await November 2012, a change in President and a change in Senate majority. This can only occur if key actors understand the Constitution and work cautiously to reinforce constitutionalism rather than to skirt around it. This will irritate the impatient, but the long-run objective must always be kept in mind. In the meantime, some Republican Governors are performing well in their attempts to re-assert states’ rights.

Ralph T. Howarth, Jr. says:

February 24, 2011 at 5:08 am

Chares K Rowley said: How can America move back to the true Constitution under such circumstances?

Tom Woods has an answer to the question: State Nullification
http://www.tomwoods.com/learn-about-state-nullification/

The premise of the State of Virginia ratifying the U.S. Constitution was on the very question of what if the general government department assumes powers not given in Art 1. Sec 8? The answer was that the State of Virginia is a sovereign state free to disregard such federal acts.

Charles K. Rowley says:

February 24, 2011 at 10:54 am

Ralph’s point is exactly correct. But the principle was overriden by the War of Northern Aggression and the victory of the North over the South. Since then nullification has not proved to be an attractive option for States even when the rights of their citizens have been seriously eroded by the federal government.

Ralph T. Howarth, Jr. says:

February 24, 2011 at 5:20 pm

@Ray Simoneaux,
My new favorite phrase for townhall meetings is:
“3/4ths the states never ratified such a measure!” More astonished looks.

@Charles K. Rowley,
Another remedy is another Constitutional Convention. Three times we came rather near to having one. Just the imminence of a ConCon can make Congress react. There is a lot of anxiety about having one as there really is no agenda that can be enforced on a ConCon. On the other hand, much of the “horse and buggy” provisions in that 1787 instrument is exploited by political graft no matter whose administration is in office. I have a draft instrument coined “Congress 2.0″ of nearly two dozen amendments which includes a confederate vote measure where a 1/5 dissent on germaneness of a bill, or a bill riding measure, in both federal houses then remands the measure to the states for a confederate vote of 2/3rds majority. A compact soveriegnty of states measure. I also have a lame duck provisional legislation and adjournment/recess appointment and pocket veto bypass amendments, and measures to assure members of Congress spend more time with their constituents; and for Senators, the constituency is the state capitol, affording remote visual conferencing be allowed for members to vote. It sure could use more scrutiny and maturation with tweaks and polished.

Seth Richardson says:

February 25, 2011 at 9:52 pm

This section, in conjunction with Article II, Section 1 and Article II, Section 3, delineating the powers and duties of the President are of particular interest at this moment, what with the President deciding all on his own that the Defense of Marriage Act (DOMA) is “unconstitutional” and his directing Attorney General Eric Holder not to further defend it in court.

The question of a President’s authority to refuse or fail to enforce duly-enacted laws of Congress is a serious one which I address in some detail at my blog, The Broadside.

The essence of the problem is that if the President has authority to decide for himself what laws are constitutional and what laws are not, he is usurping both the legislative authority of Congress and the judicial authority of the Supreme Court.

It is my view that this comprises an impeachable offense. This very matter was the subject of an impeachment of Andrew Johnson in 1868. Johnson only survived removal by the Senate by one vote.

As for Holder, he is employed by the United States, which is the People, to represent our interests in court, and to zealously defend ALL laws duly enacted by the Congress, not just the ones he wants to defend or that the President tells him to defend.

He should therefore be disbarred and fired.

Charles K. Rowley says:

February 26, 2011 at 11:35 am

Ralph’s suggestion about a constitutional convention has been discussed recently with respect to the balanced budget amendment proposal. As yet, it falls short of the number of states (two-thirds) required to call the convention. Ralph is correct that even the threat of such a convention tends to bring Congress to heel. The risk is whether a convention – once called – can be constrained to the issue it is supposed to address. After all the 1787 convention ignored its mandate, which was to reform the Articles of Confederation.

Seth’s concern about Presidential overreach is really important. If the United States enjoyed an independent judiciary that is precisely where the federal courts should intervene. But they are filled with inadequates who will not challenge a President. Impeachment is now an entirely political issue and the Congress does not have the votes to impeach and convict a Democratic President. So, such an attempt would be a huge waste of time. Holder holds his position pretty much at Obama’s discretion. And there is not a snowflake’s chance in Hell that Obama will remove a carefully selected ‘brother’ at this time.

Posted in Analyzing the Constitution Essay Archives | 22 Comments »

March 7, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Analyzing the Constitution for 90 Days – The Preamble to the United States Constitution

An Essay on The Preamble to the United States Constitution, Analyzing the Constitution in 90 Days 2011 Project, David J. Bobb, Ph.D. 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I Section 08, David J. Bobb PhD, Declaration of Independence, The Articles of Confederation, The Preamble, The Preamble

Guest Essayist: David Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.

The Preamble to the United States Constitution

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Preamble to the Constitution was added at the last minute by the Constitutional Convention, roundly criticized upon its announcement, and even today lacks any legal standing. So what does it mean, and why does it matter?

“We the People” was a powerful and even revolutionary way to announce the Americans’ new form of government, for encapsulated in these three opening words was the argument for a new regime that is in keeping with the principles advanced in the Declaration of 1776, and defended in the War for Independence.

Whereas the previous compact of the United States, the Articles of Confederation, had been a “firm league of friendship” joined by states, the new Constitution was formed by the people as a whole. The national government was sovereign, not the states. To Anti-Federalists, the Constitution went awry from the outset, for in its first phrase, they held, it announced a form of government that would eliminate the power of the states and thereby destroy the liberties of the people. Nothing could be further from the truth, Federalists responded correctly, for unless the nation wished to continue in abject weakness, it needed to empower the national government to do what the states could not, thus ensuring that the liberties of the people would be secure.

Owing to the fluid style and incisive intellect of Pennsylvanian Gouverneur Morris, who despite being the most loquacious of the delegates to the Constitutional Convention was also among the most profound, the Preamble was his parting gift to the nation, drafted as he did the final edits to the document as a whole. Remedying the weaknesses of the Articles, the new Constitution would accomplish all of ends stated in its Preamble. Morris gave those ends concise expression, and despite his clarity, they were misunderstood in his day, and often, for very different reasons, continue to be misunderstood in ours. Take, for example, two of the six ends, or goals, adduced in the Preamble: the first, which is “to form a more perfect Union,” and the fifth, to “promote the general Welfare.”

To some Anti-Federalists, the phrase “to form a more perfect Union” was taken to entail a process of perfection whereby the states would be gradually crowded out, and more and more power would be given to the central government, so that when the evolution was complete all three main functions—legislative, executive, and judicial—would be held by one consolidated power. Such would not only be a violation of the Constitution’s set-up, it would also trammel everything the Declaration had stated against the King’s own arrogation of authority. Publius and many other Federalists had a ready response for this erroneous reading.

There are many who today take the phrase, “to form a more perfect Union,” to mean that the steady march of Progress must carry us closer and closer to perfection. Intent on leaving behind old, outdated ideas, and replacing them with a “new foundation” for our government, contemporary Progressives take the Preamble out of context in supposing it an endorsement of their agenda.

“To form a more perfect Union” meant nothing about the future, and everything about the past. 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. The Constitution is the architecture of our equality and liberty not because of some supposed Progressivism in the Preamble, but rather because of its foundation in principles that are enduring.

While some Anti-Federalists wondered whether the fifth end, or purpose, of the Preamble, to “promote the general Welfare,” would, along with its recapitulation later in the first article of the Constitution, create too broad a grant of power, the overwhelming consensus at the time of the Founding was that the word “general” precluded the kind of projects that today we know as “pork.” Today the Preamble’s “general Welfare” reference is occasionally cited in error as a constitutional grant of authority. The Preamble can confer no such legal boon, and even if it could, the phrase “general Welfare” would allow very little, if any, of the legislative activity that the frequent misreading of the first clause of the Constitution’s Article I, Section 8, has permitted. In other words, to “promote the general Welfare” must be understood within the limited government context in which it was written.

Limited government for the Founders did not mean weak government. On the contrary, government had to be strong to secure the rights of the people. This is obvious when three other ends not examined in detail here are considered. To “establish Justice,” “insure domestic Tranquility,” and “provide for the common defence”: How do each of these ends require strong government—stronger than provided under the Articles of Confederation?

The Constitution’s Preamble states six ends of government, the sixth of which is, to “secure the Blessings of Liberty to ourselves and our Posterity.” It is this phrase, especially, that might remind us of the president of the Constitutional Convention, and the “Father of our Country,” George Washington, whose birthday should remind us how much we owe to him for the “blessings of liberty” that we so richly enjoy today.

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. Click on http://www.hillsdale.edu/KirbyCenter/about/staff/bobb.asp to read Dr. Bobb’s biography.

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46 Responses to “February 21, 2011 – Analyzing the Constitution for 90 Days – The Preamble to the United States Constitution – Guest Essayist: David Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.”

Trevor says:

February 21, 2011 at 3:50 am

The Preamble was considered in the debate in the States prior to ratification. It is an integral part of The Constitution and thus must have legal standing. “We the People” is an important bridge from America’s founding document The Declaration of Independence, particularly the second paragraph, which lays out the hierarchy of authority and the rationale that “…Governments are instituted among Men, deriving their just powers from the consent of the governed”.

You state, “The national government was sovereign, not the states.” I disagree entirely. The Constitution grants dual sovereignty by establishing vertical checks and balances in the form of a Federal Republic where the national government is sovereign in those matters related to its delegated powers listed in Article I, Section 8 while the states are sovereign in all other areas. This was further affirmed in the Bill of Rights Preamble and the Ninth and Tenth Amendments.

I agree with your analysis of the “General Welfare” clause in the Preamble. This meaning is reconfirmed in Article I, Section 8 as I believe Madison further explained in the Federalist Papers.

Lucy says:

February 21, 2011 at 8:13 am

I am so ever thankful that the Preamble was included , even if it was at the last minute. For me, personally, it sets a clear tone as to WHO the Constitution was a voice for.

As Dr. Bobb states: ““We the People” was a powerful and even revolutionary way to announce the Americans’ new form of government, for encapsulated in these three opening words was the argument for a new regime that is in keeping with the principles advanced in the Declaration of 1776, and defended in the War for Independence. ” It continued the theme that it was “WE THE PEOPLE”… not the King, Queen, or anyother ruling person.. but the PEOPLE. It is the People that want this gov’t and our responsibility.

Our founding fathers were brilliant.

Roberta Castillo says:

February 21, 2011 at 8:48 am

First of all, I think your word “defence” in the preamble is spelled incorrectly. DEFENSE is better

Susan says:

February 21, 2011 at 9:21 am

If by sovereignty it was meant that the Federal could contract in the name of the States as an entity rather than requiring separate ratifications I have no problems with the statement but if it means a superceding of sovereignth of the States I object.

Shannon_Atlanta says:

February 21, 2011 at 9:34 am

I am interested in hearing other’s views on whether or not the Ant-Federalists were correct (in their interpretation of the future problem with the preamble) now that we have had 200 plus years to look back.

I have heard many times the argument that “promote the general Welfare” means to provide everything for everyone. I know that the Founder’s definition of Welfare was that which helped to keep the states together; however, that has been lost in the 20th and 21st centuries.

Another thing I find interesting is this: If one reads closely, he or she will have the answer spelled out clearly as to what the Founders meant.

They want to PROVIDE for the defence (that action takes a proactive, monetary avenue) yet only PROMOTE the general Welfare (ie, kinda like creating an atmosphere whereby the states can do their business without the federal government ‘providing’ anything of monetary value.) In today’s society to promote is kinda like doing PSA’s and having the president speaking out about the dangers of drunk driving, while ‘providing’ is actually funding.

CAPT JACK says:

February 21, 2011 at 9:39 am

Liberty and the framers and founding fathers never knew how the people that live under these protections would defame and protest and denounce it.That the men and women that fought, bled, and died for the right of free speech and liberty would be so defamed and spat upon when they came home from 12,000 miles away from family and friend’s in Viet Nam.This government,and congress has become a joke.we need another George Washington NOW before we destroy ourselves and this country.In the words of Thomas Jefferson,(If the govt. is big enough to give you everything you need, it is big enough to take them away.)

Brad says:

February 21, 2011 at 9:59 am

Janine and Cathy,
I am so grateful to you both for resuming the dialogue and blogs of last year. I enjoyed the Federalist Papers and now truly look forward to the Constitution. What you do for us as citizens of this great Republic is nothing short of true patriotism.
Let the reading begin !!!

Vicki says:

February 21, 2011 at 10:13 am

Imagine encountering the Constitution without its preamble, never having heard of it, and knowing nothing about the United States of America.

It is still the same document, but the statement up front that provides the reader with context is missing.

Donna Hardeman says:

February 21, 2011 at 10:50 am

Is Dr. Bobb going to come back at the end of the day and respond to some of the questions raised? I would like his answer to Trevor’s comment about vertical checks and balances. There is so much awareness recently of the abrogation of states’ rights and the federal government announcing its sovereignty in any area it so chooses. I actually think Dr. Bobb would agree with Trevor’s statement that federal government has sovereignty in the “biggies” listed in Article I, Section 8 but, Dr. Bobb, wouldn’t you agree that the states have sovereignty over everything else not specifically delegated to the federal government?

Ralph T. Howarth, Jr. says:

February 21, 2011 at 11:09 am

For perspective, the 1st draft of August 6, 1787 was a preamble written as follows:

“We the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.”

Similar; but different. The preamble apparently was amended to reflect the more national intents; but that nationalization is limited to Art 1, Sec 8. It is that design that specifically makes a federal system, to which we do not constitutionally have a national government; but open license of federal government has formed a defacto national government that ignores the enumerated powers of Art 1, Sec 8. Case in point:

Records of the Federal Convention
Published Under Direction Of The United States Government
From The Original Manuscripts.
Reprinted 1895 Albert, Scott, Chicago, Page 725
Article 1, Section 8, Clause 7

[2:615; Madison, 14 Sept. 1787]

Doctor Franklin moved to add after the words “post roads” Article I Sect. 8. “a power to provide for cutting canals where deemed necessary”.

Mr Wilson seconded the motion.

Mr Sherman objected. The expense in such cases will fall on the United States, and the benefit accrue to the places where the canals may be cut.
…
Mr King thought the power unneccessary.
…
Mr King — The States will be prejudiced and divided into parties by it. In Philadelphia and New York, it will be referred to the establishment of a bank, which has been a subject of contention in those cities. In other places it will be referred to mercantile monopolies.

Mr. Wilson mentioned the importance of facilitating by canals the communication with the Western Settlements. As to Banks he did not think with Mr. King that the power in that point of view would excite the prejudices and parties apprehended. As to mercantile monopolies they are already included in the power to regulate trade.

Col: Mason was for limiting the power to the single case of Canals. He was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution as supposed by Mr. Wilson.

The motion being so modified as to admit a distinct question specifying & limited to the case of canals.

New Hampshire — Massachusetts — Connecticut — New Jersey– Delaware –Maryland — North Carolina — South Carolina — no

Georgia — Pennsylvania — Virgina — aye [ Ayes–3; noes–8. ] The motion was not agreed to.

arthur says:

February 21, 2011 at 11:31 am

We the people, the people of what? The citizens of the sovereign States, who sent representatives to the convention. To form a more perfect union, a union of what? The States, who sent representatives to the convention. To provide for the common defense and general welfare of what and who? The States and the citizens that lived within them. Dr Bobb states that the Articles of confederation was a compact, a“firm league of friendship” but forgets that the confederation also states “in perpetuity”. What was the weaknesses of the Articles? He doesn’t answer that question, I will, the one reason for the constitution convention was to agree on a way to force the States to pay it’s share of the debt accrued during the war of independence by the union. Who is Publius? An alias on essays to be published in news papers anonymously. They are not legal anything. The weight that they are given because they were printed in a volume titled the federalist papers is an illusion. If you want a better understanding of the constitution, read Madison’s notes on the convention taken down at the time. You can find them at the Avalon Project website. If the federal entity is sovereign then why doesn’t the representative from the District of Colombia have a vote? People certainly live there. I’m just getting started and I will post more to help in the understanding of our union of “nations” with constitutions written before the federal and which our federal constitution reflects.

Susan says:

February 21, 2011 at 12:03 pm

arthur, the weakness was in the structure that demanded unanimity before any measure could go forward. This resulted in one state blocking almost all regulations on commerce. This state was Rhode Island. This caused paralysis of all.

Ron Meier says:

February 21, 2011 at 12:07 pm

Janine & Cathy,

Thanks so much for continuing your program. I was concerned after finishing last year’s program on the Federalist Papers that Constituting America would die. I learned much about our founder’s intentions by the studies on the Federalist Papers, and have found it useful when crossing swords with people I know who pontificate on the Constitution’s meaning but who have not read the Constitution and FP or tried to understand their meaning. You’re doing a great service to our society. Blessings to both of you.

Ralph T. Howarth, Jr. says:

February 21, 2011 at 12:36 pm

At the time of the writing of the Constitution, the word “welfare” had the meaning of “happiness” or “prosperity”. So it can be said, “to promote the general happiness/prosperity”. Many today come to associate that clause with the societal safety net of unemployment and disability welfare, which still would not be a “general welfare” but that of a particular welfare and not that of charity: charity is the conscientious and voluntary giving to a particular cause where welfare is operative from the mandated taxation to a general treasury.

In addition, the Preamble was revised in part because when the original draft’s Preamble named New York, it was New York, if I recall right, objected and abstained in participating in the 1787 ConCon. Since New York was not present, it precipitated either striking New York from the Preamble or another option such as a more collective term of United States.

I say the Anti-Federalist were right in their concerns of a runaway federal government. George Mason’s objections in September 7-15, 1787 included a statement:

“Under their own construction of the general clause, at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitue new crimes, inflict unusual and severe punishements [realize Mason is the father of the Bill of Rights that came up after], and extend their powers as far as they shall think proper; so that the State legislatures have no security for the powers now presumed to remain to them, or the people for their rights.
…
The government will set out a moderate aristocracy: it is at present impossible to forsee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some years between the two, and then terminate in the onr or the other.”

Mr. Gerry had likewise this to say also among other things: “…By the general power of the Legislature to make what laws they may please to call necessary and proper…”

And more can be illuminated of sentiments of dissent on the Constitution just within the 1787 ConCon, let alone the Anti-Federalist debates that followed during the ratification process into the 1790s. In terms of Mason’s forsight, we are presently in the moderate aristocracy stage vibrating between a defacto monarchy in the President that assumes legislative powers in extended Executive Orders and a tyrannical aristocracy in the Congress that presumes executive powers in regulatory oversight. One will upstage the other eventually if the course is not changed. At present we have the SCOTUS that passes judgement on state laws for powers not granted to the Congress to legislate upon; but with consensual validation of aggregation of jurisdication, has now put the rights of the people subject to the opinions of a few.

Oh, and DEFENCE is the spelling used in the original, not DEFENSE of our present English.

Shannon_Atlanta says:

February 21, 2011 at 12:47 pm

Arthur, you said:”Who is Publius? An alias on essays to be published in news papers anonymously. They are not legal anything.”

True, the papers weren’t legally binding. However, they were a DEFENSE of the COTUS. In those papers we find WHY the framers thought the way they did. It is a good way to see why the COTUS came out the way it did.

True, Madison’s notes are a great insight; but the Constituting America site deals with the Federalist Papers, not Madison’s notes. Therefore, it may be better to discuss the narrow points made within them and the COTUS-or else we will get off on a tangent that will take away from why we are all here. Maybe you can start a blog that deals with Madison’s notes on the Convention?

zac allen says:

February 21, 2011 at 2:24 pm

I may have been confuse on how it was written, but the States are the Sovereign, not the Federal Government, even with the Constitution. The Federal Government is merely an agent of the States. I one said earlier, the Preamble set the tone , and was not supposed to be used to supercede or define any of the articles that follow. Great stuff!!!! I like it!!!

Rudolph Moreno Pena says:

February 21, 2011 at 2:25 pm

With respect to the question, “What does the Preamble to the United States Constitution mean to you?”.

Though in my late 50′s and a college drop out early on, my desire and capacity to seek knowledge and understanding has never been greater than in these times of witnessing the aggressive march of Liberal-Progressivism in America. I greatly appreciate the efforts and perseverance of Janine, Cathy & the Constituting Crew for bringing this important online study of America’s foundation to the general public. This is a good reliable source for understanding and motivation for advancing to other levels.

In my (humble) estimation, the Preamble was an obvious and much needed statement of intent aimed directly at the King of England with no room for doubt as to our resolve to be free of British rule. The boldness and timing of it seems that it could have been a last minute dare with defiance and determination. It is that kind of American resolve that makes me such a proud American of Hispanic ancestry. A mere and common blue collar citizen, though I have never been in the military, being yet in my late 50′s, well worn and still somewhat physically able, I would not hesitate to do and give whatever sacrifice is required to protect this country from enemies both foreign and domestic. To preserve America, I would give my all. To that end, if the intention of the Preamble could be painted in the expression of an American face, it would present nothing less than a countenance of stalwart love with a determined look of duty and honor, and service to country. This, while in stride with a faithful reliance on God.

For a solid parallel to the Preamble, I would encourage all to read General MacArthur’s May 12, 1962 West Point speech, “Duty, Honor, Country”. To me, it states the ironic beauty of American character and the selfless will of sacrifice. To me it absolutely defines the Preamble and the incredible courage that it took to express it.

God Bless “Constituting America”

zac allen says:

February 21, 2011 at 2:30 pm

Also…. As I consider myself a Jeffersonian Anti-Ferderalist, I must make note, that what the Anti-Federalist feared has come to fruition today… It is the dumbing down of our society that has allowed it to happen. Things like this can only help, if it will reach the right people.

Trevor says:

February 21, 2011 at 3:26 pm

The Federalist Papers were important because they were intended to sell the States on the Constitution and show why the Anti-Federalist fears were unfounded. In other words, for the most part they confirm that even the Federalists (Madison, Hamilton, Jay, Washington et al) intended the national government to be limited to those powers enumerated in Article I, Section 8 and why the term “General Welfare” was not an open ended power.

Gary says:

February 21, 2011 at 6:50 pm

To me, the preamble to the Constitution is a stirring introduction that sums up the intention of the founding fathers in what was to follow after in the articles. It sets the tone for what is spelled out in greater detail later. As such, I have always found the preamble to the Constitution to be inspiring and a wonderful reminder of what our federal government is supposed to be about. When comptemplated as a whole, and compared to what we find now in practice, it’s pretty obvious that over the last 230 years, the three branches of our federal government have grossly over-extended their powers. The preamble to the Constitution, in this matter then, is a rallying cry for those of us who believe that a limited form of government is not only what was intended by our founding fathers, but it is what we so sorely need again today.

Luci says:

February 21, 2011 at 8:12 pm

Everyone seems in agreement that our three branches of government have gotten way out of hand from what they were supposed to be but most are forgetting that it is “we the people” who allowed it. We were so busy believing the “media” that formed our minds to accept “patient gradualism” that we little by little didn’t even notice the subtle changes they shoved at us – TV, movies, stories, articles, music, art, immorality,you name it – and so here we are – unable to even recognize the great Country and people we once were.
‘They” wanted to get us from A to Z but we’d rebel and so they took us from A to B to C and pretty soon we are at Z and we wonder how we got here. Well, now we know. We were asleep. God gave us Obama for a reason. He’s thrown us from A to Z in such a whirlwind that we finally said WHOA! And now, with God’s help, wide awake, WE WILL TAKE OUR COUNTRY BACK!

Ralph T. Howarth, Jr. says:

February 21, 2011 at 8:51 pm

@Shannon_Atlanta
The Federalist Papers experience was last year’s project. This year is on the Constittuion itself. Constituting America is about all matters that concern the formation, proclamation, and ratification of the US Constitution as it was put into affect. As James Madison’s 1787 ConCon notes is our only window of a detailed account of what transpired in that secret meeting to change the operation of government, Madison’s information is very relevant to this year’ project on analysis of the U.S. Constitution rather than the Federalist Papers to promote ratification of the U.S. Constitution as the ConCon dialog tells us just what were precisely going on in the minds of the framers of the same as the document instrument was drafted.

Alyssa says:

February 21, 2011 at 9:12 pm

To me, the premable of the consitution means that the people decided what kind of government they wanted to live under.

Thomas S Mackie says:

February 21, 2011 at 10:15 pm

At the time the Constitution was written, ALL thriteen colonies were established under the common law of England. King George signed over his sovereign authority to each one of these colonies in the Treaty of Paris. It is very confusing that these men would have chosen these words since it would have been impossible for such a group to exist as “We the People” of anything…each was citizen of his own Colony (State if you wish). While I share your enthusiasm, it is somewhat “telling” that these individuals chose to so word this organic document, a document that is nothing more than the organizational document outlining the duties and responsibilities of that corporation….”telling” in that they apparently intended for the Federal Animal to flourish…it did. The Federalist Papers were nothing more than the sales and marketing effort of those men. The Antifederalist Papers tell the true story and foretold as much way back then.

Cutler says:

February 21, 2011 at 10:25 pm

The Preamble, in my opinion, in one, concise paragraph, adequately describes our founding father’s intentions for this country’s government and the Constitution, limiting it to six, “missions” if you will, to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the general welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”

Ron Meier says:

February 22, 2011 at 12:15 am

To those anti-Federalists out there, I have a question. How would it have worked out better to have retained the Confederation? If you would not have retained the Confederation, what would you have put in its place? Why would that have worked better than the Constitution?

Judy says:

February 22, 2011 at 1:26 am

What a utopia our country would be if our federal and state governments would have followed just the preamble let alone the entire constitution.

I could be off on a couple of these but I am really tired at the moment.

_________________________________________________________________

“We the People of the United States”

No longer the people of another country, king or territory but one people. No longer the people whose allegiance if for their sovereign state but allegiance to state and federal union

“in Order to form a more perfect Union”

States would acknowledge and encourage the union to be accountable to the constitution.

“establish Justice”

The federal union would no longer tolerate the injustice of oppression, tyranny, slavery or unlawful imprisonment

“insure domestic Tranquility”

The federal union would keep states accountable for keeping liberty and freedom for all people

“provide for the common defence”

The federal union would keep the sovereignty of the nation safe

“promote the general Welfare”

Key word: Promote NOT Provide: The people’s constitutional rights would be a priority

“secure the Blessings of Liberty to ourselves and our Posterity”

The freedom and liberty of the people would not be infringed upon by state or federal governments

“do ordain and establish this Constitution for the United States of America.”

This constitution is a bond between states and the federal; people and federal; people and states

Richard says:

February 22, 2011 at 4:10 am

Trevor made an excellent point about the dual sovereignty with both the National government being sovereign as well as the States being Sovereign. David J. Bobb stated the the National government was sovereign but the States were not. It is my understanding that Trevors view is correct. If we want to have a correct understanding of these daily teachings, it seems we need to have the authors of these contributions address these stated contradictions or some means to set the record straight.

James Burtner says:

February 22, 2011 at 9:42 am

Let me start by stating what the preamble means to me, then I will go on to comment on his blog. In my mind, the preamble is similar to a business mission statement or a personal mission statement, which lays out the goals and purpose of uniting the states into a whole, while at the same time allowing the people and individual states to govern themselves in most every other area of life.

It continued the idea established in the Declaration of Independence that men are born free, but establishes the reality that some men will use their freedom, and governments will use their power, to infringe upon the rights and freedom of others. For this reason, the people must relinquish a limited amount of their own freedom in order to establish a government to conduct the business of the nation, and to protect each man’s individual freedom. It requires citizens to follow good conduct in their dealings with others, and laws are established to this end.

The preamble lists the general duties of the federal government, and limits the federal government to those duties alone. The entire purpose of the Constitution was to lay out the federal government’s specific responsibilities as granted to them by the people of the nation, and was designed to specifically rectify problems they had faced due to the weakness of the Articles of Confederation.

In his blog, Dr. Bobb points out that it was a last minute addition to the Constitution. This is a little surprising because it so beautifully lays out the general role of the federal government. He also points out that there are those today who see the phrase, “to form a more perfect union”, as a means of continuing to evolve to a point where the states would lose their power and the federal government would be the sole governing power. This is a serious misreading of the constitution, as he points out, and the reason the country is where it is today. As he states, “to create a more perfect union” is based not on the future, but on the past, and the weakness they had found the Articles of Confederation to contain. The Constitution was designed to remedy those problems, not take the power of the states away, but to unite them as one nation that could operate and function as a whole without betraying the local interests of individual states.

Ralph T. Howarth, Jr. says:

February 22, 2011 at 3:33 pm

The “insure domestic Tranquility” clause rode upon the coat tails of the Shay’s Rebellion that had just occurred up to the 1787 ConCon. Having a strong federal government insured that the states could call upon the federal for help with insurrection and rebellion going on in the state, and by having free trade and a standard of weights and measures among the states would help assure lower and fairer prices of products and prevent shortages that might precipitate a rebellion. This measure was not intended to be a federal grant to impose jurisdiction on the plenary police powers of states.

The U.S. Constitution was written to define and limit the federal government and only left a provision that the federal will guarantee to ever state a republican form of government. Not until the 14th amendment was there federal supervision on the plenary police powers of states in the form of questions on Due Process (rights to defend oneself in court) and Equal Protection of the Laws (rights to sue someone in court). Those matters, of course, is a latter reading in this 90 days Constitution reading.

Mark Carr says:

February 22, 2011 at 8:21 pm

It is interesting how the Constitution has taken on so many meanings to so many people. I am very concerned about our current leaders who want to quote from the Preamble as if it is the whole document. They cherry-pick the things they want to reach their own progressive ends, most of which are directly against the word and spirit of the whole document. We need people to realize the Preamble is the introduction to the main body of the Constitution and that we all need to learn the whole thing in context before jumping off in the wrong direction.

Thank you for this opportunity to write to you all.

Debbie Bridges says:

February 22, 2011 at 8:38 pm

The Constitution was created for several reasons. The Constitution created a Federal government that would have the power to collect taxes, pay debts, regulate trade amongst the States, negotiate peace treaties with Indians and negotiate with foreign countries. Other countries would not recognize the Untied States in foreign trade agreements and treaties because we didn’t have a unifying Federal government. They were not willing (rightly so) to deal with 13 individual States when negotiating with the United States. Hence, the Articles of Confederation wasn’t working for this reason as well as the other problems already discussed in this thread. The Preamble beautifully announced to the world that we had come together as One Nation with One Federal government to be our voice and protector while at the same time retaining and protecting the individual sovereignty of the separate States and their citizens.

Janine Turner says:

February 23, 2011 at 11:55 am

Dr. Bobb, I thank you for your fabulous essay and for your generosity of time!
I never knew that Governeur Morris wrote the Preamble and that it was written last.
Knowkedge is power and only by truly understanding the words of the Constitution can one debate the wide array of misinterpretations that bombard citizens today. Your words enlighten the path one journeys on his/her destiny to defend our Republic.

Jerry Turner says:

February 23, 2011 at 4:08 pm

WOW. It is so refreshing to read the words all of you have written. I thought I must be the only person left in common America who understood the general ideas and principles of the Constitution. People say all kinds of “stuff.” But they can never back it up with real source material. This was more informative and educational than any class I’ve ever taken. Maybe there is hope. I still doubt it, but with the middle east transforming their governments and all you intelligent individuals out there teaching fellow Americans; it gives me just a little hope.

Shelby Seymore says:

February 23, 2011 at 4:38 pm

We provide for the common Welfare. Not provide Welfare. Which is one of the biggest reasons we are in a 14+ trillion dollar debt. I know welfare is a “good thing,” but only when churches or private businesses try to help the needy. Period. John Locke said the government provides protection from foreign attacks, protection from criminals, and actual needed infrastructure (which turtle crossings don’t count!). Welfare started when the poverty was 13%. Now in 2011, it’s still 13%! It didn’t help, in fact it’s making the rest of the nation less wealthy.

Gene Hinders says:

February 24, 2011 at 12:52 am

The Preamble, to me was a way to sum up what the Founding Fathers had laid out for us…an 18th century “sound bite” if you will…and one of the most powerful statements to ever had been made.

yguy says:

February 24, 2011 at 4:08 pm

The Preamble to the Constitution was added at the last minute by the Constitutional Convention, roundly criticized upon its announcement, and even today lacks any legal standing.

How can it have any less “legal standing” than the rest of the Constitution which was ratified along with it?

So what does it mean, and why does it matter?

In maximal contravention of those who make it out to be a throwaway line, I submit that the Preamble is properly viewed relative to the rest of the Constitution as Christ said the two Great Commandments ought to be viewed relative to Mosaic law; i.e., the Preamble tells us where we’re going, and the rest of the Constitution tells us how we mean to get there. In the same vein, I would call attention to Christ’s act of healing on the day of rest; and just as the Sabbath was made for man rather than man for the Sabbath, the Constitution was made for America rather than America for the Constitution. One consequence of this view is that regardless of whether a President can constitutionally suspend the Great Writ (which he can, IMO), Lincoln acted constitutionally by doing so during the Civil War.

yguy says:

February 24, 2011 at 4:16 pm

The Constitution grants dual sovereignty by establishing vertical checks and balances in the form of a Federal Republic where the national government is sovereign in those matters related to its delegated powers listed in Article I, Section 8 while the states are sovereign in all other areas.

I say baloney. I say there is only one sovereign entity according to the Constitution, and that is We the People, our will being expressed by a supermajority of states per A5. No government entity has ANY sovereignty under the Constitution, as they are all vassals of those who consent to be governed by them.

Todd says:

February 24, 2011 at 7:32 pm

yguy,
I think you are picking nits regarding soverignty. Government, in the context of the document is “the people”. I think this goes without saying. But you are correct.

yguy says:

February 24, 2011 at 9:45 pm

Government, in the context of the document is “the people”.

If that’s true, then the master is his servant, and his command to the servant is a command to himself. Obviously that makes no sense, since We the People delegate certain tasks to our servants in government because we can’t or won’t do them ourselves.

Ruth Harper says:

February 25, 2011 at 11:17 pm

As the name “Preamble” says, it “walks before,” or introduces, the Constitution. As such, it identifies the parties: in this case “We the People” and “the United States,” and it establishes the nexus or connection that binds them together. According to my Black’s Fifth, the preamble is also “explanatory of the reasons for its enactment” the pronoun referring to the Constitution)and states “the objects … to be accomplished.” In that sense, it is indeed analogous to a mission statement as someone has already said.

It is true that it does not grant any powers; Black’s again, this time quoting a particular case: it “neither enlarges nor confers powers.”

Ruth Harper says:

February 26, 2011 at 6:58 am

A Caveat Against Injustice
– or –
An Inquiry into the Evils of a Fluctuating Medium of Exchange

Oddly, the specific issue under the Articles… that caused great problems and inequities, as stated in a book called Miracle on Main Street, and explicated in another, called E Pluribus Unum, was the lack of a lawful “money of account” among the states. Some places used specie coin, others paper “money” that was essentially worthless, with resulting chaos, rioting, and bloodshed.

The most familiar example was Shay’s Rebellion which arose at least in part because those western farmers had no specie money (gold or silver coin) with which to pay taxes demanded by their brethren in Boston on the East Coast who only dealt in specie because they could demand it for the products they traded with foreigners.

Thus, with Shay’s as a trigger, the Constitutional Convention was called in large measure to solve the problem of a lack of uniform currency or money of account (as opposed to the paper “continentals” that were “of no account” or just plain worthless).

Hence the specific concerns listed in the Preamble

“…to form a more perfect union,” (one money; uniform currency),

“establish justice,” (paper, like corn or apples, does not last or hold value as do gold and silver),

“ensure domestic tranquillity” (There was contemporary fighting over money issues),

“provide for the common defense,” (pay soldiers in money that has real value),” and especially,

“promote the general welfare,” (general well-being does not happen with a fluctuating medium of exchange! It happens with business and enterprise done with a stable medium of exchange; something that holds intrinsic value),”

“and secure the blessings of liberty to ourselves and our posterity…,” (what greater blessing than being able to buy and sell and save for a rainy day in something that has enduring value, and then even pass it on to our offspring?)

Ruth Harper says:

February 26, 2011 at 8:18 am

Oops! The author of the “Caveat …,” was Roger Sherman, the only Founder to sign and/or help write all four of our really important founding documents: the Continental Association of 1774, the Declaration of Independence, the Articles of Confederation, and the Constitution of the United States.

But his “Caveat Against Injustice – or – An Inquiry into the Evils of a Fluctuating Medium of Exchange,” predated all those by more than 20 years! He wrote the Caveat in 1752, based on real-life experience. Like the authors of the Federalist Papers, Sherman modestly hid behind a pseudonym: He called himself a “Lover of Good Law” which, borrowing Greek, was “Philo eu nomos” (though not spaced as I did it here). When only two copies were known to exist, F. Tupper Saussy, author of The Miracle on Main Street saw the copy inscribed by Mr. Sherman to a friend wherein he had crossed off the Greek nom de plume and wrote in his own name.

One can go to the Connecticut State Library in Hartford and search out the file of a lawsuit in which Roger and his brother William sued James Battle for “paying” a debt of 129 pounds with nearly worthless paper from the “Rogue State” of Rhode Island. The Sherman brothers lost the case, but won the war, so to speak, because Roger lived to write into the new 1787 Constitution, Article I, section 10, that “No State shall … make any Thing but Gold and Silver coin a tender in payment of debts….” I believe his imprint is on other clauses as well, but just that one would be sufficient glory could we but interest state authorities in living up to it by demanding that the Federal Reserve be audited, and then sent packing, and that our mints resume making real money so we could all give up the “paper is money”charade!

Susan says:

February 26, 2011 at 12:42 pm

yguy, I believe the thinking for the representative republic was to hire a ‘representative’ to take care of that portion of the business of governance so that the majority of the people could continue in a more efficient day-to-day operation of life and the provision for his family and community.

Ralph T. Howarth, Jr. says:

February 26, 2011 at 3:24 pm

Ruth, I had no idea that Philoeunomos was Roger Sherman. I thought the name/title had something to do with the Bible’s Philemon. Now I know different and pleasantly something more. Thank you very much!

craig eyrich says:

February 28, 2011 at 6:22 pm

dear janine and cathy, i am so happy that ‘classes’ have resumed!–i will follow this assiduously and try to support your website as best i can!– as i’ve said in the past–i never learned anything from opening my mouth and i am truly grateful for the learned commentaries from the other devotees of this website!–your friend in liberty, c.eyrich

March 7, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Welcome to Analyzing the Constitution for 90 Days! Reading and Blogging Schedule

Analyzing the Constitution Reading and Blogging Schedule

Join us for a fascinating 90 Day Study of the United States Constitution! Each day we will hear from a Constitutional Scholar as we slowly make our way through this amazing document! Blog with us! Let us know your thoughts about the day’s passage, and how it is relevant today!

June 20, 2011 – 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.

June 21, 2011 – 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.

June 22, 2011 – 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.

June 23, 2011 – 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.

June 24, 2011 – 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.

March 7, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Federalist No. 1 – Cathy Gillespie

Federalist Paper 01, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 01, Federalist No. 01

Thursday, April 29th, 2010

We made it to the Federalist Papers! I hope you are as excited as I am to dive into these fascinating op-eds – the media and PR campaign for the Constitution! I am travelling today – (Howdy from Texas!) And typing in the dark, in a hotel room in Austin, trying not to wake my daughter. So, please forgive the brevity of tonight’s post.

Federalist 1 is striking to me in that Alexander Hamilton’s view of the gravity of the crossroads America was at, is clear to him in a way that is rare for someone in the midst of current events of their time. Looking back, with a 222 year perspective on the situation, it is easy to agree that had the States failed to ratify the new Constitution, it would most certainly have been a loss for mankind. But for Hamilton to have the vision to see that, at the starting gate of the United States’ journey into the world, reveals him to be a visionary of the highest magnitude.

This quote near the beginning of Federalist #1 sums up the precipice the United States was teetering on:

“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.”

Hamilton’s support of civil political discourse also resonated with me:

“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.”

This is the nature of man, and we can see that not much has changed in 222 years! But Hamilton is right about the ineffectiveness of angry discourse. Both ends of the politcal spectrum were guilty of this in Hamilton’s era, just as some on both sides still utilize these tactics today. It is so refreshing and much more educational when political discussions can be had without anger and personal attacks.

I look forward to the coming 84 days. I am embarking upon this journey with fresh eyes, having never read the Federalist from cover to cover, despite having a degree in Political Science! To think back to the days before the internet, Twitter, or Facebook, before 24 hour cable news, before radio, when communication by the spoken and written word (on real paper) was the only means of spreading a message, it is enthralling to read these papers and witness an 18th Century PR campaign, and to be able to look deeper into some of the founding fathers’ thoughts, values, principles and world views, as they set about to shape our Nation.

Good night!

Cathy Gillespie

7 Responses to “April 28, 2010 – Federalist No. 1 – Cathy Gillespie”

Harry Stumpf says:

April 29, 2010 at 6:47 pm

Not much has changed in 222 years? I’d say not much has changed in 50,000 years. One of my favorite movies is ‘Quest for Fire’, set back then. They’re just like us, with slightly less technology. And if you watch it, you will see the world’s first joke! (It involves a coconut.)
Dale says:

April 30, 2010 at 6:56 am

I am playing catch up as I have missed some reading “making a living” like each of us must do. To reflect back, these writers and framers of the US Constitution and the Federalist papers too, were people of business and commerce first. They were not career politicians with a guaranteed pay check from government/ you and I. What a unique perspective they brought to their thinking and actions compared to our present, so called leaders. They were scholars and statesmen with an outstanding view of the past, able to reflect their understanding into the present. Now, in our humble study of their great acts, may we spread the knowledge and fever of faith through out this great land.
Kay says:

May 2, 2010 at 7:26 pm

Just bought my paperback copy of The Federalist Papers, and started underlining and taking notes. Hamilton, as Cathy noted, knew human nature, our passions, for good or ill, and acknowledges them. I like that…honesty about human nature.
Kellie says:

May 3, 2010 at 7:57 am

I have tried to read the Federalist Papers before, and had a hard time, mostly due to the language, it can be hard to follow. I am so thankful that Ms Turner and others have taken on this assignment for America, it is so vital that we understand the thoughts and theories that our founding fathers took into account while building our great nation. These blogs will help me better understand these theories and thoughts, and I think I will enjoy reading these papers much more than before. I agree with Kay’s post, in that is it fascinating how Hamilton began his papers with his emphasis on human nature and our passions as a people. I hope someday we can find leaders in this country who know and understand that and will be willing to fix what has broken.
Rich_H says:

June 13, 2010 at 2:12 am

I think the entire first paragraph could be applied to the American people today, with minor modifications, in an appeal to once again consider the importance of our Constitution:

AFTER an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on [the] Constitution [of] 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 [a country] 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 [maintaining a] good government from reflection and choice, or whether they are forever destined to [watch a good government system be undone by political contrivance] and force [by men of ill will towards freedom]. 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.

Hamilton sure nailed this one: “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.”

How many times has the left abused the word “rights” to find what does not exist in the Constitution? From the right to privacy to justify abortions to the right to other peoples money (redistribution), health care, housing, etc.
David Hamilton says:

June 13, 2010 at 3:37 pm

I too find myself late at the starting line, but I am committed now to catching up.

I as well have to confess to owning a well “dog eared”, annotated, and coffee stained copy of the “Federalist Papers”, that I also have made previous forays into with the intended goal of a complete reading of these editorial pieces, editorial pieces that in fact are the detailed instructions that supplement the “Quick Start Guide” that is our Constitution.

Many people express a level of frustration with understanding the writing style of the authors of these pieces. Despite being a prolific reader, I admit to having to stop and reread passages and dwell on them to gain a thorough understanding of their intent.

Bearing in mind that these founding documents, The Declaration of independence, these Federalist Papers, and most especially The Constitution itself, were written not for any specific, highly educated body of people, but for the whole body of the people, to read, understand, and live by. It is a shocking display of the level of degradation of our usage and understanding of our own language, and the causes of this degradation being at least as vital, albeit separate, a topic for discussion as the documents themselves.

Specifically addressing Federalist #1, I find myself struck with the sense that our Constitutional Republic has been under assault from within by Madison’s dreaded factions, from the beginning.
From The “Alien and Sedition Acts” of John Adams, to the crippling of States Rights of Lincoln, on to the socialist policies of FDR, and now mandated health care.

The current struggle to “restore” our constitutional republic is one the founders would little doubt readily recognize, but would certainly be flabbergasted by the extent to which civil discourse, and honorable intent has deteriorated.
Tim Shey says:

July 19, 2010 at 10:53 pm

Back in 1994 I read the first 200 pages of “The Federalist Papers”.

I “discovered” this website this past week–Jim Best sent me an email telling me about Constituting America. This looks like an excellent website. I am looking forward to reading more of it.

I believe the U.S. Constitution was inspired by the Holy Ghost. It seems like the great leaders of the Constitutional Convention in 1787 were George Washington and Benjamin Franklin and the great intellectuals were Madison, Hamilton and Jefferson.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 1 – Janine Turner

Federalist Paper 01, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 01, Federalist No. 01

Wednesday, April 28th, 2010

Howdy from Texas. Speaking of Texas, be sure to watch tonight’s behind the scene Video Podcast! I filmed it at my ranch with Juliette. It’s fun.

So today is our first day of the Federalist! Federalist Paper #1 by the brilliant Alexander Hamilton! I wrote about his mother, Rachel Lavien Fawcett in my book, “Holding Her Head High.” Historians have not been very kind to her, but read my version. It is from a woman’s point of view. There is no doubt that she planted the seeds of greatness, determination and an entrepreneurial spirit in Alexander’s character.

I want to thank Horace Cooper for writing our wonderful essay today! Thanks, Horace. I love the quote from Benjamin Franklin when asked by a woman, “What have you given us?” and Benjamin replied, “A Republic, if you can keep it.”

This is our challenge today. We must step forward and stand up for our founding principles and demand that our Republic be vital and strong and that our Constitution be protected preserved and defended. The best way for us to do this is with a basis of knowledge about our country’s thesis. How lucky we are that it is so well documented in copious documents and books – the Declaration of Independence, the United States Constitution and The Federalist being the foundation. (We will have to continue our scholastic adventure – the same forum with different documents and books!)

I hope you read today’s reading of the Federalist with your children and/or loved one and don’t forget to sign your children up for our contests! The high school students get a trip to Philadelphia, an appearance on Governor Huckabee’s show and $2000.00 scholarships – and we have cool categories such as: best short film, best hip song, best PSA and best essay about how the Constitution is relevant today! Spread the word. Entries due July 4th!

Speaking of relevant today, we are going to be amazed at the relevancy of the Federalist papers. For those who think the Constitution is antiquated and obsolete, I dare them to read the Federalist papers with us!!

The first thing that I love is that Alexander Hamilton, James Madison and John Jay came together for the good of the country. They did not agree on many things, and later became quite divided, but they united to accomplish the magnificent miracle of the Constitution and “The Federalist.” They saw the bigger picture and were able to forfeit their egos to better their country – and they had vision! They had vision and wisdom and determination and a sense of service. Great qualities that I dare say all of you have who are participating in our National Conversational/Blog Reading!

Another thing that I love is that they wrote it under the name of Publius after Publius Valerius, a founder of the Roman Republic. A Republic. They knew that they all had reputations that proceeded them for better or worse and they did not want the objectivity of their thesis to be tainted by preconceived notions. Smart. These men were very smart and they truly loved the United States of America.

This is what it’s going to take to awaken, educate and propel Americans to undertake the journey of Constituting America – a love for the United States of America and all she embodies – nobility, greatness of character, philanthropic communities with a genius for creativity and a gut for survival. We have a Republic and God save the ones who try to strip American’s of our inherent rights, rights that exist in the Declaration of Independence and the United States Constitution and embody Americans today. God bless America.

And God bless our forefathers who sacrificed so much for their posterity – all of the great men and women who have fought throughout our history to maintain our dignity, freedom and inalienable rights.

Blessings and goodnight!

Tomorrow it’s Federalist Paper #2!

Janine Turner

6 Responses to “April 28, 2010 – Federalist No. 1 – Janine Turner”

Harry Stumpf says:

April 29, 2010 at 6:11 am

I agree that once we are done with the Federalist Papers we should keep on going with other documents. Maybe the Anti-Federalist papers would be a good choice. I can’t say for sure, not having read them myself yet.

But the Federalist Papers argued for a central government strong enough to be able to protect our country and be effective. That was in a time when the opposition wanted a more limited government, which might not have been much better than the government provided in the Articles of Confederation.

Now our situation is different. Our government is much too large and has power over far too many aspects of our lives. It ignores our will, violates many principles that we and the founding fathers hold dear, and takes actions which weaken and endanger us.

Maybe the arguments presented in the Anti-Federalist Papers would apply today.
Susan Craig says:

April 29, 2010 at 7:29 am

I will second Harry’s motion to do an reading of the con side to this argument!
Louis Palermo says:

April 29, 2010 at 12:24 pm

Federalist #1 Excellent!!!!!!!!
Louis Palermo says:

April 29, 2010 at 12:25 pm

Federalist #2 Excellent!!!!!
Fredda R. Wigder says:

April 29, 2010 at 9:16 pm

I would sincerely doubt that the authors of the Federalist papers envisioned the type of big, bloated Federal Government that we have today. I have difficulty believing that they would have been in favor of that.
Jesse Vardaman says:

June 12, 2010 at 11:11 am

The founders would not be in favor the bloated government we have today. They were definitely against any form of government that tread on the inherent rights of its people. And they would definitely be aghast at the blatant disregard that our current representatives show for our Constitution and Bill of Rights today.

As Janine quoted Ben Franklin, and I will repeat here. ” A republic if you can keep it.”

Can we keep it America?

“Anyone who trades liberty for security deserves neither liberty nor security” – Ben Franklin

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 1, General Introduction, For the Independent Journal (Hamilton)

Federalist Paper 01, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 01, Horace Cooper, The Articles of Confederation

Guest Essayist: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

The Federalist Papers were written from 1787 to 1788 by Alexander Hamilton, James Madison and John Jay. They were published in several New York State newspapers to persuade New York voters to ratify the proposed constitution that had been crafted at the Philadelphia Convention in 1787. Numbering 85, the essays outlined the ways the new federal government would operate and why this type of government was the best choice for the United States of America. Each of the essays were signed “PUBLIUS” and they remain today as an excellent reference for anyone who wants to understand the United States Constitution.

Hamilton opens Federalist #1 with an introduction of the present state of affairs in the then existing United States of America and his plan to explain over a series of Papers why the new federal government created by the U.S. Constitution was necessary. Premised in his argument is a fundamental foundation upon which our system of government is based — self-government or rule by the consent of the governed. From its inception our Constitution’s validity was tied to the notion that formal acceptance and ratification by the people and the state legislatures was necessary in order to be legitimate. Our Constitution was neither self-enacting nor imposed from a ruler.

At the time of the writing of Federalist #1 the United States of America is governed by the Articles of Confederation. Drafted by the Second Continental Congress in 1776, the Articles of Confederation had been submitted to the states for ratification in November of 1777.

As outlined by the Continental Congress, the federal government by 1787 had the authority to make war, negotiate diplomatic agreements and treaties, and acquire and oversee new territories that had not yet become full-fledged states.

However, by the time of the Philadelphia Convention that year many of the inadequacies of the Articles of Confederation were obvious. The government created by the Articles was incapable of providing the authority and power needed to be a fully functioning authority. Instead of a division of authority among three separate branches, the federal government exercised all of its authority through a unicameral legislature called the Congress of Confederation. Ironically, such a concentration of power masked the overall weakness of the federal government.

In order to change or amend the Articles, it required unanimous approval of the states. This standard made making any changes or reforms nearly impossible. The federal government had no power to tax and as such could not meet even its most basic financial responsibilities. A threshold requirement that nine of 13 states approve major laws passed by the Congress limited the ability of Congress to act on any but the most uncontroversial matters. In addition, it is significant that the Articles provided no authority for Congress to resolve conflicts between the states or to set up countrywide rules to encourage merchants and commerce.

Hamilton along with many other of our Founders recognized that if the United States was ever to become an economic powerhouse capable of defending itself from enemies without and within it was essential that the changes proposed in the Constitution were adopted. You see it was not simply dumb luck that we have this national charter. Now more than 200 years later we Americans share in the legacy created by these men and women who had such foresight and wisdom.

The Philadelphia Convention convened in May of 1787 and did not finish until September. When the convention finished Delegate Benjamin Franklin was approached by a woman. She asked Mr. Franklin, “What have you given us? A monarchy or a republic?” He famously replied, “A republic…if you can keep it.” Therein lies our task as citizens today.

Wednesday, April 28th, 2010

Horace Cooper is a Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

47 Responses to “April 28, 2010 – Federalist No. 1, General Introduction, For the Independent Journal (Hamilton) – Guest Blogger: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation”

Peter says:

April 28, 2010 at 1:50 am

It is particularly interesting to me that Hamilton and Madison, who worked so well together to produce the Constitution and see it through to ratification, later became the driving force behind the first two political parties (The Federalists & The Jeffersonian-Republicans, which today are known as the Democrats). United in the cause of bringing the nation into being, they later split over the direction it should take.

It would be interesting to see how–and if–the differences that later developed between are foreshawdowed in The Federalist Papers. Perhaps some of the experts could build that analysis into their commentaries as the series moves forward.
Lillian Harvey says:

April 28, 2010 at 4:32 am

“…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.”

I wonder how Mr. Hamilton would feel about the “power grab” enacted on the backs of the American people in the form of “Healthcare *access through mandated insurance purchase*” as an Individual Right? He certainly didn’t think much of the “rights” of people over the “firmness and efficiency” of government.

It is clear that the anti-Federalists had a reason to be nervous for the future of our country and establishing a federal system without a clear delineation between the rights of individuals and the powers granted to government by those individuals. Without that rich debate, would we have ever gained the deep appreciation for the liberty and prosperity that was possible as this country grew? To even think that modern day Progressivism is in anyway aligned with the thinking of either of these schools of thought is absurd, imho. How far away they are from what the Founders were talking about and doing.

Do our selected leaders of today really understand how far this process has strayed? I feel there are tricks and tyrants afoot.

Are you all as blown away by what you are reading as I am? I studied these documents in school, of course. But I feel like I am finally understanding them because there are such contrasting ideas being practiced in our government today. Process is everything. I understand why these 1st Principles were adopted and why they fought so hard to enact them. Time to restore the Republic to 1st principles. No pain, no gain.
Will says:

April 28, 2010 at 7:21 am

@Lillian Harvey
Yes, I’m pretty much blown away by understanding the deeper meanings in these documents. Until this project I never really understood how things like Social Security, Medicare and parts of the health reform bill really *are* unconstitutional, and should be abolished.
Lillian Harvey says:

April 28, 2010 at 8:10 am

@Will
Finding the reset button is one thing, but pushing it is another. Each day, I’m finding more courage to accept the consequences of doing just that. There are more of us to convince that we are on the wrong track and there will be sacrifices to get us straight. Projects like this one are our best hope to help us make the necessary case through educated and considered argument against the legislative waste passed for the “good of the people”.
Donna had a great description of how the study of case law and rulings on precedents rather than original intent has assisted in getting us off track. Being able to see legislative proposals through the principles laid out in the Constitution demonstrates that most have no place being enacted at the Federal level. There is so much bloat in the Executive as a result. Of course “Washington is broken”. This structure was not designed to carry that extraordinary and unnecessary weight.
Susan Craig says:

April 28, 2010 at 8:41 am

From Ecclesiastes “There is nothing new under the sun”. It continues to amaze me at the well rounded understanding of the human condition that our Founding Fathers had. How our ‘education’ has failed us.
Carolyn Attaway says:

April 28, 2010 at 8:53 am

I made the comment to my husband last night, that since I started reading the Constitution again through this series, watching the news took on a complete new dimension. Listening to Congressmen discuss the Immigration Laws and the Goldman Sachs debacle, I am realizing that many have no idea what they are talking about. Congressman and newscasters alike are saying things like ‘This Law Makes it a Crime to be an Illegal Immigrant’. I had to clean out my ears when I heard that one. Surely I was mistaken. Sadly, I wasn’t.

And I could have cried when I heard the congressmen grilling Goldman Sachs CEO’s. They had no idea what they were asking, and could not understand the answers. Don’t get me wrong. I do not believe Goldman Sachs is an innocent victim in this mess, but the dog and pony shows our Congress puts on is embarrassing. And it’s all for political gain. I find it hard to believe they will prosecute Goldman Sachs; just like passing an immigration law, it is to dangle the carrot in front of unsuspecting voters for the November election.

Our country burns, while our Congress fiddles. I wonder if Benjamin Franklin knew how prophectic his words would be.

On another note, I find it interesting that all the letters are signed PUBLIUS. Publius was the “Chief man of the Island of Malta” mentioned in Acts 28:7 (Another proof that our founders read the Bible). How appropriate that they used the name of the man who entertained Paul and his companions while they were shipwrecked on Malta, and were seeking a permenant place of residence. Paul and his companions stayed on the island until the stormy season had passed. Could our founders have felt that same way in trying to ratify the proposed Constitution? I find this very interesting and it sheds a new light on this process for me.
Carolyn Attaway says:

April 28, 2010 at 9:08 am

I forgot to add on my previous post, that I believe with Knowledge comes Responsibility. As we read and discuss the Constitution and Federalist Papers, we are being charged with passing what we learn to others. No more couch activists! If we are to help restore our country, we must step into it. Finding the perfect balance between teaching and not preaching, will be a challenge for me, I know. But I heard a great piece of advice that other day on the radio. The talk show host was talking to a priest who works out west. The priest said the difference between liberals and conservatives, is that liberals use their emotions for their arguments, while conservatives use facts. When dealing with feelings, one must tread carefully.
Shannon Castleman says:

April 28, 2010 at 9:14 am

Carolyn, right on. agree with you that Goldman Sach’s is not a Saint. However, if my Economics degree taught me anything, it is this: They have the right to short an invenstment just as we have the right to wait for that new pair of jeans to go on sale. (That is basically ‘shorting’ the position.)

If people are wise stewards of their money, and diversify their investments like the BIBLE commands, they really wouldn’t be hurt by one bad apple.
Susan Craig says:

April 28, 2010 at 9:26 am

My ‘couch’ efforts have included posting the days revelation on my local news station’s blog site and calling the HS principle and ensuring that the HS was aware of the educational tools and contest available for his students.
Maggie says:

April 28, 2010 at 10:04 am

I, too, am embarrassed at the debacle going on with the grilling of Goldman Sachs…especially since the one doing most of the grilling (and using profanity) is from my district. I agree that those doing the grilling have no idea what they are talking about. Yes, something needs to be done about reigning in Wallstreet but how and at what cost? The government itself is up to its eyeballs in the cause of the financial mess we are in. Our founders KNEW that humans crave and seek power and that power corrupts (“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.”….John Emerich Edward Dalberg Acton). That is exactly why they were so careful in their drafting of our Constitution and the follow up Federalist papers. The government was not MEANT to be Big Brother. Their “powers” were meant to be very limited. Government is neccessary to prevent anarchy, but “we the people” are the ones in power (alteast we are supposed to be).
Robert Shanbaum says:

April 28, 2010 at 10:09 am

What a curious commentary on Federalist #1! Mr. Cooper, could you have written less about the actual content of Hamilton’s essay?

The bulk of the essay is not about government at all. It opens and closes with a bit about the importance of the decision. But in the middle five paragraphs, Hamilton gets to his main purpose, which is to “poison the well” – to try to bias the reader against the other side, which Hamilton expects to rise in opposition to the new Consititution, before he has a chance to speak. Look at the litany of characteristics that the opponents will have: “ambition, avarice, personal animosity…” They will have some personal interest in the preservation of more powerful state governments (“…power, emoluments, and consequences of the offices…”). Essentially, it’s an exercise in mudslinging – but it’s the most elegant and dignified mudslinging since Marc Antony’s eulogy in Julius Caesar.

Federalist #1 doesn’t shed much light on the Constitution at all, except to the extent that it sheds light on the way politics worked in the Eighteenth Century. And when I read the following, in which Hamilton predicts how his adversaries will behave, I can’t help but think, this could have been written yesterday:

“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.”
Robert Shanbaum says:

April 28, 2010 at 11:57 am

Lillian, you do realize, do you not, that when Hamilton wrote that “a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people”, he was referring to people whom he expected would oppose the Constitution by arguing that it would give the government too much power to infringe on people’s rights? You realize, don’t you, that those people – the ones who argue that they’re interested in “the rights of the people” – those are the bad guys in Hamilton’s narrative?

The good guys here, according to Hamilton, are the ones who promote the virtues of a government having “firmness and efficiency”.

I ask because in your comment immediately following the citation, it sure looks like you could be positioning yourself as one of Hamilton’s bad guys when you argue that the government’s actions are a “power grab enacted on the backs of the American people.” That sounds to me like it could be characterized as a “zeal for the rights of the people.” Whether one would see it as a “specious mask” of the same is probably a matter of one’s political persuasion.

You might want to read a little more about Hamilton. He’s something of a problem for those who are seeking support in the Constitution for de minimis government. In the Philadelphia Convention, for example, he proposed a centralized government in which the former states were stripped of their sovereignty altogether. (Importantly, to give you comfort, he did not prevail, obviously).

Elsewhere in these blogs, Hamilton was referred to as “evil” because he favored centralized, powerful government (which he did indeed, to a greater degree than any modern progressive of whom I’m aware). But whether you like his politics or not, he was in fact one of the framers of the Constitution, and he apparently saw sufficient comportment (dare I say, “potential comportment”) between it and his politics to allow him to go to the trouble of working for its ratification by writing these articles.

To answer your question about how Mr. Hamilton would feel about your alleged “power grab”, I’d say, he would be perfectly alright with it.

On that same topic, it may interest you to know that in 1798, the fifth Congress created the Marine Hospital Fund, which established a network of federally-run hospitals along the eastern seaboard to care for sailors and seamen, financed by a federal tax on their wages of twenty cents per month. That system persisted into the 1980’s. I think that in addition to what the Founders and Framers wrote, it’s instructive to look at what they did.
David Hathaway says:

April 28, 2010 at 12:45 pm

My interest in the Federalist Papers was begun when I read the recent biography of Alexander Hamilton, written by Ron Chernow. It was an interesting read, especially since Hamilton went on to found and The First Bank of The United States, the first Fed. I highly recommend this book.

I’m sorry that I have delayed reading the Federalist Papers for so long. Thanks for the guided opportunity to make up for lost time.
Karen Sherer says:

April 28, 2010 at 12:47 pm

I LOVE this opportunity to really refresh my understanding of the roots of our wonderful country by reading and blogging with all of you about the Constitution and the Federalist Papers! I’ve never blogged before so I was excited to finally find a topic I could respond to that offers something new and, perhaps, worthwhile. @ Carolyn Attaway: you provide so much food for thought, and maybe Madison did name Publius from the Publius of the Acts of the Apostles as the author of the Federalist Papers but the edition I am using had an insightful introduction by a man named Charles A. Kessler. He wrote that Publius Valerius Publicola was instrumental in establishing the republic of Rome. He called Publius the founder and savior of Rome and that Plutarch compares and contrasts this man with Solon the democratic lawgiver of Athens in “Parallel Lives”. Kessler wrote that Hamilton named the author of the papers “Publius” to trump the anti-federalists who were using “Cato” and Brutus” (also heroes of the Roman republic) as pseudonyms for their anti-federalist papers.
Also @Carolyn: I hope to end my career as a “couch activist” as I become more able to defend my political belief with facts. And I also heard that interview on talk radio about the difference between liberals and conservatives and I find that really true.
Carolyn Attaway says:

April 28, 2010 at 1:14 pm

@Susan – Great “couch” activities! I didn’t even think about the local news station blog. Good idea.

@Shannon and Maggie – I for one am glad that the GOP has stopped the Financial Reform from getting to the floor for debate. I do not trust this Congress with Financial Reform, especially since they will not even address Fannie and Freddie, or want to put more bailouts for Big Banks in this bill. That just scratches the surface. I would love for this Senate to stop anything from going through until after the election AND they address spending!

And the Founders had it right about Congress should not be a full time job. I cannot even begin to describe my emotions when I heard Tim Geithner comment “I never had a real job”. Doesn’t that spike confidence in his abilities to help the ‘real’ world?
Carolyn Attaway says:

April 28, 2010 at 1:40 pm

@Karen – Awesome piece about Publius Valerius Publicola. I find it intriguing that the name Publius is close to the word Public, which can be defined as people constituting a community, state, or nation, or a particular group of people with a common interest, aim. I am really enjoying learning so much from everyone’s input about our founding documents.

The hardest thing I have found about getting off the couch so far is pulling my friends with me.
Thomas Soyars says:

April 28, 2010 at 2:14 pm

While true when written this part may be even more true today:

“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.”
Ron Meier says:

April 28, 2010 at 2:14 pm

At my church, we are having a sermon series titled “Get off your donkey.” It is based on the story of the Good Samaritan, Luke 10:34, who got off his donkey to serve his fellow man, even though the injured man was one others, including priests, avoided and refused to help. In like manner, by following this program, we should have the courage to get off our donkeys, armed with the knowledge of what our founders wanted this great country to be, and be ready to “fight the good fight, keep the faith, and finish the race,” 2 Timothy 4:7. We have a lot of work to do, and it’s time to get off our own donkeys and force our leaders to get back on the track our founders placed us on more than 200 years ago. The tea parties are a good start, but only a start. Remember what Edmund Burke said, “All that is necessary for the triumph of evil is for good men (and women) to do nothing.”
Ron Meier says:

April 28, 2010 at 2:21 pm

And, thanks to Janine and Cathy for getting this going! Two women who listened to Burke and got off their donkeys.
Ron Meier says:

April 28, 2010 at 2:43 pm

Interesting comment when Hamilton says: “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.” It’s interesting to me that much of the rhetoric in DC today is supposedly based on making everything better for everyone other than the wealthy; it seems that this is a ruse to convince the people that having more government will make this happen, when the ultimate end game is to maximize control over the majority of the people. 50% don’t pay income taxes now; if the Administration and Congress can move that up to 70% or so, then they’ll have the people right where they want them.
Jesse says:

April 28, 2010 at 3:01 pm

As I finished Federalist 1, I concluded that it set out the plan for the series of essays, what was to be discussed, and tried to debunk one of the first objections – that the individual states are better off without being under the umbrella of a nation.

My personal belief is in line with Federalist 1 – America is a great country because of its ability to bring the talents, resources, opinions and people of the individual states together while allowing the states to experiment and maintain their individuality.
Andy Sparks says:

April 28, 2010 at 3:05 pm

Carolyn,

The Publius pseudonym used by Hamilton, Madison, and Jay was named for the Roman Consul Publius Valerius Publicola who supposedly helped form the Roman Republic. He lived around 500BC, well before the birth of Christ.
Melanie says:

April 28, 2010 at 3:37 pm

How impressive you all are in your commentaries! I suspect the only thing our Founding Fathers would be proud of and respect today (were they to awaken to our current state) would be the new rebirth of patriotic activism, the passionate rediscovering of our heritage, and the determination of Americans to restore our great republic to it’s true form of constitutionally limited government of, by, and for The People.

Lillian rightly appreciates how wise our Founders were in their understanding of human nature, and how delicate and difficult to maintain a limited government would be. I can never get over the profound wisdom of our Founders in that they not only understood the nature of their righteous endeavor, but they understood how unique in the annals of all human history their undertaking was! They were IN the moment, and they KNEW they were in the moment. How grand! Lillian, it does just blow one away.
Chuck Plano, Tx says:

April 28, 2010 at 3:41 pm

Carolyn here is a question, if to become a naturalized citizen you must be able “to speak, write and read words in the English Language in their common usage” and it is violation of the law to vote if you are not a citizen, why do we need to print voting ballots in any language but English and provide interperters at voting places as is required by the Voting Rights Act of 1964? Is it because we knowing allow People who are not Citizens to vote?? I have ask this question of Congressmen in the past and have never received an answer.
Shannon Castleman says:

April 28, 2010 at 5:45 pm

Chuck, great point. As a matter of fact, that is the main reason Obama and his ilk are against the AZ law-because many of their voting base will leave. The Democrats have to rely on illegal votes/ACORN tactics/the Black Panthers with their bats at a voting place in Philly, etc. to win an election.

They cannot win on the merits of the debate.
Carolyn Attaway says:

April 28, 2010 at 6:28 pm

@Chuck – That is a good question. I do believe all official tests, such as citizenship, driver’s licenses, voting, etc, all should be in English. But keep in mind, there are many in Congress who do not want to make English the official language of the United States. As a matter of fact, do we even have an offical language yet?

According to Congress.Org – ’2/26/2009–Introduced.National Language Act of 2009 – Makes English the official language of the U.S. government. Requires the government to: (1) conduct its official business in English, including publications, income tax forms, and informational materials; and (2) preserve and enhance the role of English as the official language of the United States of America. Provides that no person has a right, entitlement, or claim to have the government act, communicate, perform, or provide services or’
Bill # H.R.1229

Original Sponsor:
Peter King (R-NY 3rd)

Cosponsor Total: 31
(last sponsor added 04/21/2010)
1 Democrats
30 Republicans

Only 31 sponsors, pretty amazing huh?
Horace Cooper says:

April 28, 2010 at 6:30 pm

Several commenters have mentioned that Hamilton’s repeated preference for an efficient central government meant that he would embrace the sizeable federal government that exists today. However no fair reading of Hamilton and his writings would yield this assessment. Hamilton’s arguments about a strong central government should be juxtaposed against the organizational handicaps of the government that existed under the Articles of Confederation. His view was that the government needed to more capable and agile in order to accomplish the limited set of objectives outlined in the Constitution — not the all encompassing objectives presently undertaken by the modern Federal Government. Additionally as a member of the burgeoning merchant class Hamilton believed that there was a fundamental responsibility of the federal government to encourage commerce. For him the lionshare of the regulatory state would be anathema.

H Cooper
Rob D says:

April 28, 2010 at 6:40 pm

@Robert S:

Liberty basically means limiting other people’s power, and to do this effectively, you support a lesser power against a greater: the pope against the emperor, the king against the pope, the parliament against the king, and so forth.

When the States dominated, it makes sense to strengthen the central government. Now the balance is tipped the other way, so we oppose Washington’s excesses.

“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 he 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.” —Hamilton, Federalist #28

Also, please let’s appreciate our guest commentators. If there’s more to add, then you can happily add it.
Andy Sparks says:

April 28, 2010 at 7:35 pm

Robert,

You are right on. The Federalist essays are propoganda! They were written specifically to convince New Yorkers to ratify the constitution because many parts of that state had anti-federalist sentiments. It’s important to remember that Madison and Hamilton were strong supporters of a more energetic federal government. Both had witnessed first hand the anemic government under the AOC as representatives from their respective states. They were not proponents of limited government (Madison would become so, but not at this time). In fact, Madison had proposed that the Constitution allow the federal government to negative any state law and was deeply concerned when it was not adopted. Hamilton all but proposed the government be an electable monarchy with the executive and Senate being elected for life. Hamilton, of all the founders, would probably be the most proud of how the USA became a world superpower.
Debbie says:

April 28, 2010 at 7:39 pm

The signing of the the name Publius interested me enough that I looked up the definition in Wikpedia. The name Publius is a Roman masculine given name meaning “public” in Latin, one of the small group of common forenames found in the culture of ancient Rome.

There are also references to other Publius names, such as: Publius Valerius Publicola (Roman Consul), Publius Clodius Pulcher (Republican politician), Publius Cornelius Scipio (Roman Consul), Publius Quinctilius, (Roman General and Politician), Publius Clodius Thrasea Paetus (Senator during Nero’s Reign), and Publius Aelius Fortunatus (Roman Painter).

In actual fact we may never really know who was the real Publius, or was the name used because it meant public.
Lynne Newcomer says:

April 28, 2010 at 8:30 pm

I so love this, hello everyone. There is so much going on these days that you could almost lose your place if you didn’t press to maintain your focus . I am not complaining but I find the rapid fire of the political scene makes me ponder some of the tactics outlined in the book- Rules for Radicals -. This site is so helpfull,giving an intellectual boost via articulating my own as well as marinating my thoughts in all that is offered on this site.I watch and listen to cable news and radio programing to gather opinions,and while I value the points of view,this site has helped.
Someone said that we should get rid of Social Security, Medicare and some of the Health care bill,I have to respecfully say if that were to happen, I would be mad as a hatter…. I have been paying into these (not health care )for well over 40 years, holy mackeral that would probably cause many of us older folks to get out our pitch forks.As I would be in the front line. I understand (I think) the point that was trying to be made but fair is fair.
AZ,I am following this situation very closely and have heard things that range from the sublime to the ridiculous.Bottom line the Goverment has failed and in their failure have denied the citizens in boarder states and all states actually their Constitutional Rights. This group of people are not fullly included in the discussion of civil rights and I don’t think for one minute that it is a mistake.To stand the two groups side by side might provide too much lite on the subject for any real question to even be proposd.The Feds need to get off thier butts and do their jobs,.
Debate debate debate is the name of the game ,what I find distressing is the demonizing of opposing opinions, . This keeps us honest, or should ,using tricks or slight of speech is a shame.
Enough from me I guess I should get down off my soapbox. Good Night all.
Shannon Castleman says:

April 28, 2010 at 9:25 pm

Andy, good comments. However, I take a different approach than you based on your comment: “It’s important to remember that Madison and Hamilton were strong supporters of a more energetic federal government.”

It is my belief the reason they wanted a more energetic Federal Government is because under th AOC, the feds couldn’t even raise taxes in order to fund what the constitution stipulated.

I would rather ask a different question: Pick the most ‘big government’ “Founding Father”, bring him bck to life, bring him to America in the year 2010, and ask him his thoughts.

Tell that Founding Father that the feds and state governments want to tell me how much salt to eat, want to tell McDonald’s they can’t serve toys with Happy Meal, want to tell cops in AZ they can’t research someone’s citizenship who has been pulled over for a DUI, want to tell me I have to purchase health care insurance, and then record their thoughts.

I don’t believe the quotes would be printable:)
WeThePeople says:

April 28, 2010 at 10:02 pm

@Peter, I too find that interesting that Hamilton and Madison went on to be so influential. It’s odd that their beliefs, or at least one of them, changed. But wasn’t Andrew Jackson behind the creation of the democratic party?
I think that by signing the papers by the name PUBLIUS, the actual writers separated themselves (all of them being significant political figures of the time) from the Federalist Papers, and made the connection back to the people. I think that, despite the elevated language, it would make the public feel more closely related to the topics addressed in the papers. It would make them feel like the concerns expressed here should be theirs as well.
Tricia Revolinsky says:

April 28, 2010 at 10:06 pm

“From its inception our Constitution’s validity was tied to the notion that formal acceptance and ratification by the people and the state legislatures was necessary in order to be legitimate. Our Constitution was neither self-enacting nor imposed from a ruler.”
What confuses me about this is that the creators of the Constitution decided that the Constitution was effective immediately and that the Articles of Confederation were debunk. They didn’t wait for all the states to ratify that the AOC was now null and void. They hoped that most of the states would ratify it and all the others would fall in behind them. Only after stubborn little Rhode Island ratified it, did it really become a true document formally accepted by the people. Until that point, the Constitution was in all respects, self-enacting.
Carolyn Merritt says:

April 28, 2010 at 10:32 pm

The US Constitution that Hamilton, Madison & Jay defended has become one of the most copied and admired documents in the history of mankind. The Federalist itself was published in Spanish in 1811 by the Venezualan Manuel Garcia de Sana, along with copies of the Declaration of Independence and the Constitution. The Federalist influenced movements in Argentina, Mexico, Brazil and in Europe.

Hamilton believed in the future greatness of America and believed that our nation could and would be one of power and strength. He somehow knew the United States would be a world power. (And wouldn’t apologize for it either).
Joshua Foote says:

April 28, 2010 at 10:34 pm

the articles of confederation was an absolute disaster. The states didnt wait to ratify it and because of this many problems arose. Even after the constitution was formed these states were fihting over many other issues than the ge=reat compromise resolved. ONly after rhode island ratifed the constitution did the people of the new wnited states accept the constitution. Be fore this document was ratified howver, the articles did a bad job at holding the counrty together, and only after the constitution was formed did the US truely become a self sustaining nation.
Greg Zorbach says:

April 28, 2010 at 10:41 pm

In response to the two posts by Robert Shanbaum, in no particular order:
Of course “Federalist #1 doesn’t shed much light on the Constitution at all.” It is, after all, titled “General Introduction.” As Mr. Cooper points out, The Federalist Papers “were published in several New York State newspapers to persuade New York voters to ratify the proposed constitution that had been crafted at the Philadelphia Convention in 1787.” It seems to me that to argue means to point out the superiority of your argument and the flaws in opposing ones, as well as any ulterior motives that may exist in those making those opposing arguments. I’m perplexed as to why you would find Mr. Cooper’s blog to be “curious.” He is after all, commenting on a general introduction to an 85-article two-volume set. It did not surprise me that: “The bulk of the essay is not about government at all.” It was billed as an essay on Federalist I, which got the process of persuasion under way. As Mr. Cooper put it: “Premised in his argument is a fundamental foundation upon which our system of government is based — self-government or rule by the consent of the governed. From its inception our Constitution’s validity was tied to the notion that formal acceptance and ratification by the people and the state legislatures was necessary in order to be legitimate. Our Constitution was neither self-enacting nor imposed from a ruler.” Messers Hamilton and Cooper were both setting the stage for what was/is to follow.
The sense I got from this rereading of Article I was that Hamilton was attempting to introduce the Publius articles by remarking on the “mud-slinging” as you put it, that had marked debate to that point in order to keep that most-important public dialog (as Jay puts it in today’s reading – Federalist II) more substantive, and with candor, even good will. The history of politics is replete with evidence of Hamilton’s warning that those who would stand to lose power (the states’ legislators) under the new Constitution would oppose its ratification, regardless of the strength of the arguments for it. We see that same dynamic in play today: Congress will never vote for a flat tax or term limits: too much restriction on their power. (The closest to the exact opposite I can recall in my lifetime was the new Republican-led congress voting on the first day in session to limit the terms of its committee chairmen.) Hamilton goes on to admit that “Candor will oblige us to admit that even such men may be actuated by upright intentions…blameless at least if not respectable.”
As you point out, of course Hamilton was on the side of a more-powerful centralize government. That was the point of the Constitutional Convention: to fix the weaknesses in the governing Articles of Confederation and the resulting weak federal government. I do not believe that Hamilton was (or does in subsequent articles) see ‘good guys’ or ‘bad guys.’ It is true though that, as you put it: “Whether one would see it as a “specious mask” of the same is probably a matter of one’s political persuasion.” After all during the previous administration dissent was characterized as patriotic. Today the Tea Partiers are accused (by a former president no less) of fomenting violence.
I believe that a main genesis of our current exercise of rereading the Constitution and the Federalist Papers is rooted in how far the federal government has strayed from the Constitution, especially from the Tenth Amendment. In that regard, the Anti-Federalists and other skeptics were correct to insist on the Bill of Rights. Although the fact of the Tenth Amendment’s inclusion seems to have had no obvious effect on limiting the federal government’s powers to those enumerated in the Constitution.
Upon rereading Lillian’s blog, I have no doubt that she understands where Hamilton’s views lie. After she lauds the Anti-Federalists, she makes the basic point of Article I (and our current civic exercise) quite nicely: “Without that rich debate, would we have ever gained the deep appreciation for the liberty and prosperity that was possible as this country grew?” You do realize, do you not, that it takes arguments from both sides of an issue to have a rich debate? Is not the point of any debate or series of articles on an important public issue to “to bias the reader against the other side”?
As to the question of how Mr. Hamilton would feel about the healthcare “power grab” Lillian mentioned, I disagree in your conclusion. First, we don’t know how Hamilton felt about the issue of establishing hospitals for soldiers and sailors. (Since he served General Washington admirably and loyally, I can hazard a guess.) Secondly, the only thing that the concept of caring for those who flight our wars and/or defend our liberties has in common with the current government’s takeover of the entire nation’s healthcare system is that both are/were federally run. Enlisting in the armed forces requires one to give up significant personal rights and freedoms. In turn, the country, with the government as our agent, provides for those individuals. Not many of us who will see our healthcare choices inevitably restricted under the new law ‘enlisted’ in anything, but we will see our freedoms and liberties limited nonetheless. I believe that Hamilton would be perplexed, if not appalled. In fact, Shannon may be right: his reaction may not be printable.
OBTW, very nice post, Melanie.
Daniel Smith says:

April 28, 2010 at 11:47 pm

Given the history of large governments in the past why do you think Hamilton had such faith in this new county?
Andy Sparks says:

April 29, 2010 at 12:02 am

@Shannon – Undoubtedly, you are right. But then again, Madison and Hamilton probably could not conceive that women and blacks would ever be elected as representatives of our government, or be able to even vote for that matter…
Melanie says:

April 29, 2010 at 2:56 am

Janine, the new series, “America, The Story of Us” is wonderful. The focus of the narration seems to be the deep faith, the independent spirit, and the determination of the Americans to live unfettered lives of limitless possibilities! I was thrilled to hear the commercial announcement that every school in America will receive the DVD series. Let’s hope it is put to good use. (And let’s hope its message remains unchanged.)

The First Amendment “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof…” when clearly understood, is so powerful! It makes me want to come to the defense of people of all faiths. If we don’t reclaim and assert our religious heritage, and stand up against the progressive secularization of our country, we will be lost as a nation, and the world will be lost. A little good news today… the Supreme Court upheld the right of the Mojave Desert WWI War Memorial to display the Cross.

The more we study these writings, the more profound the gems we find.
Robert Shanbaum says:

April 29, 2010 at 9:55 am

Greg, thank you for responding to my comments.

I did not write that I thought my observations were surprising, and I apologize for being critical of Mr. Cooper. However, I thought that remarks on Federalist #1 should probably include some comments on the content of Federalist #1, and not just reflections on its title, and that’s what I was trying to (happily) supply.

I didn’t realize that the object here was to learn about “how far the federal government has strayed from the Constitution”, but to learn about the Constitution. An intellectual inquiry that begins with the former purpose may well find its object, but it will fail to understand its subject well, as only that which was sought will be revealed.

I am not convinced that the oft-cited fourth paragraph has been well understood here. My use of the term “good guys” and “bad guys” was an attempt to use modern vernacular to describe that which is couched in the unfamiliar prose of another era. If you think that Hamilton was not trying to set up the debate as between what we would call “good guys” (his side) and “bad guys” (the other side) in that paragraph, what do you think he was saying?

I do indeed realize that a debate requires two positions. A debate does not, however, require what Hamilton has done here; that is, attempting to demonize his opponents before the actual debate begins. I am not passing judgment on the use of this technique – I’m simply observing that that appears to be his main purpose here.

By the way, the Marine Hospital Fund (and its related income tax) covered not just naval personnel, but merchant seamen as well. Also, I am curious about your comment that the healthcare plan will restrict your healthcare choices, and thereby limit your freedoms and liberties: if this or some other healthcare plan implemented by the government were to increase the number of choices available to you, would that expand your freedoms and liberties? Would that make it OK?

I do agree that Hamilton’s reaction, and for that matter, the reactions of all of the founders and framers, to the modern federal government, and for that matter, the modern world in general, might well be perplexity and dismay (though I think sheer shock would be the most likely reaction); after all, those are reactions of many who have grown up in it.

With regard to Mr. Cooper’s comment, wherein he disagreed with my conclusion as to what Hamilton’s possible reaction to healthcare reform might be, saying that Hamilton would have been attached to the enumerated powers in the Constitution, I refer both of you to Hamilton’s actual proposal for the new general government, which you can read here:

http://avalon.law.yale.edu/18th_century/debates_618.asp

Also, you may find his side of a debate with Jefferson regarding the chartering of a national bank informative:

http://avalon.law.yale.edu/18th_century/bank-ah.asp
Dale Swartzel says:

April 29, 2010 at 6:42 pm

Wonderful article! I think I understand a lot more about what the founders were trying to say and why. Thanks so much.
Ross Bigney says:

April 30, 2010 at 5:57 am

To me the most important lesson from Federalist #1 is the importance of hearing again that even the greatest idea — for example the Constitution — isn’t valid unless the people consent. Our founding fathers were marvelous people — they had such foresight. And people like George Washington who were popular enough that he could have become king of our country but would not. They are truly marvelous people.
Arizona Citizen says:

May 1, 2010 at 12:06 pm

Arizona lawmakers have approved changes to the state’s controversial law cracking down on illegal immigrants. The changes were designed to answer charges made by protesters that it will lead to racial profiling by police. The original law stated police can conduct an immigration status check during any quote “lawful contact,” if they have reasonable suspicion a person is an illegal immigrant. It replaces “lawful contact” with “lawful stop, detention or arrest,” clarifying police may not stop people without cause. The revised law also removes the word “solely” from the phrase “The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin.” Read the new Arizona Immigration Law
Kristine says:

May 1, 2010 at 4:46 pm

Please note, there is a great article enitled “Could the Constitution stop the new health-care law?” by Nathan W. Tucker in the Christian Science Montior Volume 102, Issue 23 (current issue..weekly publication.) In it he mentions that the enumerated powers of Article I, Section 8 do not mention the power to “legislate our health.” He goes on to discuss why the common claim by Congress that the Commerce Clause, and Tax and Spend Clause, and references to general welfare do not support the power grab of mandating the purchase of healthcare. He also mentions the “FEDERALIST PAPERS.”
Rod Criscillis says:

May 29, 2010 at 9:38 am

That is some inspirational stuff. Never knew that opinions could be this varied. Will all of the Federalist Papers be brought down to earth in such a compelling way? Thanks for all the enthusiasm to offer such helpful information here.
Susan Craig says:

July 1, 2010 at 7:51 am

I don’t know about the suffrage of other races but I see no reason that they couldn’t imagine the suffrage of women because women had suffrage in the late 1700 in the state of my birth New Jersey.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

April 29, 2010 – Federalist No. 2 – Cathy Gillespie

Federalist Paper 02, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 02, Federalist No. 02

Friday, April 30th, 2010

Some great discussion going on! Love the give and take. I am learning so much from everyone’s analysis and comments, so I thought tonight I would highlight some of the quotes from Federalist No. 2, and from the posts and blog comments which especially resonate with me.

My good friend, Marc Lampkin, did an excellent job as Guest Blogger today. We especially appreciate Marc coming back on in the afternoon to further expound on John Jay – he provided some enlightening background information.

Have you all been watching Janine’s Daily Podcasts on the website? I highly recommend you check them out each day for the lighter side of Constituting America. Yesterday she gave us a tour of her ranch and longhorns (don’t you love their names?), and today we got to see where she does her best work – her car! Janine and I have an ongoing battle of who has the most miles on their car. Mine is currently at 130,405 and I believe Janine may be beating me by about 10,000 miles. As moms, it seems we spend the majority of our day driving or sitting in parking lots waiting. Amazing how much you can get done in a parking lot!

As for Federalist No. 2, I had several favorite passages:

“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.”

As Shannon pointed out, the people cede power to the government. And similar to the point Janine made in her post, when we are not educated and informed, when we are lax, or not paying attention, we are making the decision to cede even more of our individual rights and liberties.

The other quote that caught my eye, and was highlighted earlier today by Susan, was:

“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.”

Again, the theme is an educated, engaged and thoughtful electorate. Issues of great magnitude deserve thorough consideration. When we ground ourselves in the U.S. Constitution and the principles upon which this country was founded, we have a road map to guide us through the maze of public policy proposals that can easily lead down roads that will ultimately take our country in the wrong direction.

A big thank you to all of you who are blogging! We invite our silent partners to find your voice and let us hear from you!

And a final big thank you to our founder and co-chair, Janine Turner! Janine had the idea for Constituting America over a year ago, promptly registered the domain name, and got to work organizing! It is her vision that has brought us the 90 in 90 = 180: History Holds the Key to the Future program. Janine is an inspiration to me, as she continually puts God, her daughter, and her country first in her life. It is an honor to serve with her in this effort.

Good night!

Cathy Gillespie

5 Responses to “April 29, 2010 – Federalist No. 2 – Cathy Gillespie”

Amy Winchester says:

May 1, 2010 at 8:49 am

I am so grateful for this Website and have been telling my friends, e-mailing them, and telling others I work with. I have never read the Federalist Papers and have found so much foundational truth and we are only on #4. What a gold mine! Anecdote: re: being informed and educated. I was at the public library the other day waiting for my grandson and thought I would read my daily Federalist reading so asked the librarian if they had a copy of theFederalist Papers. She did not know what they were and someone overhearing my said, ” I think I have heart that name before. What are they?” So I was able to inform them and the librarian took down the Web site information. We have to keep spreading the word. This is great!
Susan Craig says:

May 1, 2010 at 1:35 pm

How sad that librarians need to be informed as to the debates about our founding documents!
cooperscopy says:

May 1, 2010 at 1:59 pm

This is a great website and Miss Turner certainly has an incredible grasp of the constitution…..read: The divider in chief….at…..
http://cooperscopy.blogspot.com/
Roger Jett says:

May 2, 2010 at 12:00 am

I just happened upon this website tonight and have not fully digested all that’s available here. I am impressed with what I see. We are in danger as a nation and one of the biggest challenges I see us facing is our lack of understanding and appreciation of what we have been blessed with. As a people, I’m afraid we have over time grown quite ignorant, but the American People are not generally stupid and ignorance can be overcome by learning and developing the ability to discern truth. To all who have played a roll in building this website I say thank you and may God bless you.
Rich_H says:

June 14, 2010 at 1:45 pm

Jay’s opening statement, “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.” Is relevant today, Americans will have to reflect that they now must decide a question; will we return to the Constitution or abandon it for Obama’s transformation into a lesser America under the ruling thumb of a gigantic government.

Some people suggest we need a Constitutional Convention today but do we today have people of the caliber of out Founders? Whom Jay describes as, “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” who “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.”

Do we have such people who would be in that convention today?! No! We do not need a convention. We need a return to the original Constitution.

Contrast the difference between the patriots founding our country and the leaders betraying America today. Our Founders “only RECOMMENDED, not imposed” this plan and explained the 7 page Constitution in detail with 33federalist papers. Today Obama/Dems rammed through an over 1000 page health care plan against public will, unseen and unexplained, in fact lied about. Pelosi said it needed to be passed so we would know what’s in it. How have we sunk so far?

If the progressive left is not stopped and their damage undone, we shall surely be saying of our beloved America, “FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS.”

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

April 29, 2010 – Federalist No. 2 – Janine Turner

Federalist Paper 02, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 02, Federalist No. 02, Federalist No. 68

Thursday, April 29th, 2010

Howdy from Texas! I thank you for joining us today! I am thoroughly enjoying this process and I am learning so much from the readings, our exceptional scholar’s essays and from all of you who are blogging. I want to say how appreciative I am that Marc S. Lampkin joined us today as our “guest scholar” and I thank him for his wonderful interpretation and explanation of Federalist Paper #2 by John Jay. Thanks Marc!

There are many aspects in our readings of the United States Constitution and “The Federalist” that are relevant today. However, as I was juggling many pertinent points from Federalist Paper #2, suddenly a more general observation manifested.

Our forefathers were intent on explaining the Constitution to the people of the United States. They wanted the Republic to understand what was in the “bill,” and they undertook great pains and efforts to make sure that happened – 85 different Opinion Editorials published in newspapers and spearheaded by Alexander Hamilton.

Not only did they go to great pains to explain the contents of the Constitution, which was only seven pages, they knew that the American public would demand to know what was in it before they ratified it. This brings about two conclusions:

1. The American people of the 18th century wanted to know what their government was doing, felt very much involved in the process, and were passionate about the direction of their country
2. Publius and the signatories of the United States Constitution felt obligated to explain it to them, and did so in great detail and they could – as they had written it and they understood it.

A very different atmosphere exists today. Both the American people and the United States government are to blame for the obscurity in which we wander. The bloated bills and ignorance of their intentions are the fault of both the governor and the governed. We, as collective countrymen and women, grew discordant and lax in the affairs of the state, and like a child pushing the boundaries with their parents, the United States government got away with what they could. It’s human nature. Men are not angels – hence, the Constitution.

But times have changed. Our country’s woes are like trying times for the soul. Difficult times are God’s way of shaping our character – making us into the people He wants us to be – a light, a leader. Now Americans are waking up and realizing that we must once again demand to understand. What is really in the bill and what is really the direction of our country? We are realizing that we must vet, vote and find our voice. In our blood is the ancestry of righteousness.

We must stress to our elective officials that we will accept nothing less than clarity. In Federalist Paper #62 James Madison zeros in on this point:

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 today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known or less fixed.

The title of John Jay’s Federalist Paper No. 2, “Concerning Dangers from Foreign Force and Influence,” is applicable today as well. If we do not gain control of the economy we are going to be like Greece and times of economic stress are ripe for tyranny.
If we do not gain control of our spending and deficit then we are a sitting duck for the hunters who wait in the night – “Dangers From Foreign Force and Influence.” As Benjamin Franklin said, “Think, when you run into debt, you give to another power over your Liberty.”

John Jay’s ends this paper, from over two hundred years ago, with a Shakespearean quote, it echoes eerily across our current environment. It is a battle cry and ominous warning of something we do not want to ever shout, “FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS”

As the present necessity of unity prevails, we the people will gather with the mission of preserving our great country and we will be spurred by our patriotism and launched by our learning.

God Bless,

Janine Turner

6 Responses to “April 29, 2010 – Federalist No. 2 – Janine Turner”

Richard Gruver says:

April 30, 2010 at 12:35 am

Janine, Those are great thoughts on our current state of government. When the press and the governed decided that character no longer mattered but only progressive press aligned political ideology and many of the governed became incessantly dependent on government handouts and fixated on class envy promoted by progressives and the media we lost our way. The Bible says don’t covet thy neighbor’s property, wife, goods…etc. but preogressive envy everything of those who work hard and want it all taken and redistributed to the envyors. It will take dedication, courage and a divine hand once again to re-establish our nation to its’ founders principals. It starts a the ballot box and voting for elected officials who put the constitution and the people above themselves. I hope we can be sucessful as the alternative is not very good for our future generations.
Seij De Leon says:

April 30, 2010 at 1:55 am

I find it very interesting how when the country was being constructed, the people were so ready and willing to learn about the constitution. Nowadays I think this overall involvement in the direction of the country has definitely weaned, which is understandable as they are not dealing with the insecurity and troubles of forming a new system of government after the relatively ineffective and weak Articles of Confederation. If more people were to take an active role in examining politicians and seeing what they put first, instead of trusting the news media, then the nation could start to head in a better direction, like how Gruver says, it starts at the ballot box.
Kellie says:

May 4, 2010 at 3:40 pm

Given this new passion sweeping the country, which our current leadership has so graciously created, I am anxious and excited to see what happens in November. I am hoping and praying that it will be the catalyst for the people of this country to continue to pay attention, spread the word and make their voices heard. We may be on the eve of a scary, yet possibly exciting, new revolution…
Charles Babb says:

May 4, 2010 at 7:01 pm

Janine; you and Cathy have provided a wonderful service by making this educational tool available.

How, and why has the practice of writing such confusing and lengthy bills evolved? Was it just to confuse the electorate so that we would have less control over our legislators?

How we go about demanding clarity in the way legislation is written will be another story, but with the armor of knowledge and the weapon of truth, we will prevail.
tommy says:

May 5, 2010 at 12:11 pm

Just wanted to say I really liked the post. You have really put a lot of energy into your posts and it is just awesome!
Jim S says:

August 20, 2010 at 2:56 pm

Charles & All,

Legislation has become more lengthly because we expect it to be specific. The Constitution, on the other hand, is simply the framework for our government. If we wanted to fairly compare the two, we should include with the Constitution Congress’ rules of order, the Uniform Code of Military Justice and all military regulations, rules of decorum for the Supreme Court, and Executive procedures. This compendium would outline exactly how the government should be run, as the healthcare bill outlines for its role. Then we may complain about our 2000+ page Constitution.

Jim

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 2 – Concerning Dangers from Foreign Force and Influence, for the Independent Journal (Jay)

Federalist Paper 02, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Marc S. Lampkin 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 02, Marc S. Lampkin, The Articles of Confederation

Guest Essayist: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School

Thursday, April 29th, 2010

Federalist Paper #2 was written by future Federalist party chieftain John Jay to address what many founders felt was a critical deficiency regarding the then existing government authorized by the Articles of Confederation. The deficiency was the major vulnerability the young nation faced because it lacked sufficient national authority to defend itself or to enforce its laws.

Reflecting his view that the public “choose” the new central government contemplated in the Constitution rather than simply acquiesce in it, Jay presents his arguments in terms of the “self interest” of the readers. “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.”

John Jay was the oldest contributor to the Federalist Papers at age 41. Jay, a staunch abolitionist who would go on to become governor of New York and successfully ban slavery statewide, also had served as President of the Continental Congress and was a principal negotiator of the Treaty of Paris. After the U.S. Constitution was ratified, he would become the first Chief Justice of the United States Supreme Court.

At the time of the writing of Federalist #2, it had only been a few years since the Revolutionary War had ended. Although the Americans had just successfully defeated one of the most powerful military forces on the planet when it successfully won its independence against England, barely five years later the capacity to carry off a similar feat was dramatically undermined by the operation of the Articles of Confederation. In addition, compounding matters there was increasing sentiment among the political class that instead of presenting a “united” front as part of a United States of America, the states should actively consider whether even the loose association authorized by the Articles was either useful or worthwhile.

John Jay vigorously argues that not only should the states remain united; they should adopt the proposed Constitution’s federal style of government. It was Jay’s view that the crisis of the Revolutionary War had led to the hasty creation of the Articles of Confederation and even as its defects became apparent, those deficiencies were not great enough to prevent America from prevailing in the war.

Now that the war was over, the problems of the Articles had been so severe that the Philadelphia Convention had been convened to attempt to ameliorate its difficulties. Of course the result of the convention was an entirely new compact being drafted. The central theme of this compact is that it contains a Federal Government with specific authority and power to carry out its limited but important duties in a way that the Federal Government authorized under the Articles of Confederation could not.

John Jay presents two basic premises that are basis for his argument: it is a fundamental responsibility of government that it has the necessary power to regulate conflict and administer the laws it has lawfully enacted. Secondly, in order for any grant of authority to be legitimate it must be consensual — that is the people must grant the government the powers.

While Jay recognized that any of the government powers exercised ultimately came from the people, the issue was which of these powers should be reserved for citizens and which were usefully granted to the government. The test for Jay was whether a particular grant of authority best protected the safety and interests of the American populace. However, this problem was made more difficult when the question of whether the Americans should unite under one national government or instead become separate states.

To Jay the answer was a strong union. He believed that for all intents and purposes, the confederation of states were already a union. He argued that the geographical make up of the nation including its topography and “navigable waters” created natural boundaries that encouraged commonality. Additionally the faith, language, principles and customs of the people who dwelled in this land which were overwhelmingly similar also argued for a strong union.

“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.”

Since the land, people and language made it naturally more efficient to remain together then Jay believed that it was essential that the government they were subject to had the authority and power to carry out its duties in a way that the Articles of Confederation had never allowed. “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.” It was John Jay’s considered view that the adoption of the Constitution in the long term would prove beneficial to all Americans both in a time of military conflict and in times of peace.

Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC is a graduate of Boston College Law School

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

April 30, 2010 – Federalist No. 3 – Cathy Gillespie

Federalist Paper 03, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 03, Federalist No. 03

Saturday, May 1st, 2010

Howdy from Texas! I am still here in the Lone Star State for a few more days. Tonight Janine and I were honored to be invited to a wonderful gathering hosted by our friends Don Hodges and David Thompson and many new and old friends in Dallas to fill them in on Constituting America and how they can be involved. We are gratified by the enthusiasm those in attendance have for learning and spreading the word about the U.S. Constitution, and hope to see our Dallas friends joining us on the 90 in 90 = 180: History Holds the Key to the Future Blog!

Today’s reading, Federalist 3, begins to address the benefits of the new government proposed by the U.S. Constitution, vs. a government of independent, sovereign states, as some at the time advocated. It is interesting that one of the first justifications for the Constitution expounded upon by John Jay was the safety and security of the homeland, still a primary concern today.

Jay’s statement that “one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter,” is certainly true. A government that is perceived as strong will be less vulnerable to attack than one that is divided and weak.

Chuck invoked Ronald Reagan today, and President Reagan was on my mind as I read Federalist No. 3 as well. In a compelling National Security speech on March 23, 1983, Reagan said:

The defense policy of the United States is based on a simple premise: The United States does not start fights. We will never be an aggressor. We maintain our strength in order to deter and defend against aggression – to preserve freedom and peace.

Just as a body’s strength is dependent on its skeletal system, our country’s strength is dependent on its Constitutional backbone.

Our founding fathers knew they lived in a world that posed threats, and they knew the best way to keep the peace was a strong, unified country. Two hundred twenty-two years later, our world still poses threats, and the stronger and more unified the United States is perceived, the safer we will be.

Have a great weekend everyone!

See you Monday for Federalist No. 4

Cathy Gillespie

9 Responses to “April 30, 2010 – Federalist No. 3 – Cathy Gillespie”

Susan Craig says:

May 1, 2010 at 10:59 am

That is one thing I can never figure out. How when we have never been the initiator of aggression and very infrequently have we retained, annexed and or occupied for our profit can we be called imperialist? What dictionary definition of that word do people who think that hold to?
Reed W says:

May 1, 2010 at 6:07 pm

Wow, the more I read, the more I am grateful for the founding fathers and their consideration and determination to bring about a united government that was motivated towards the shared rewards of a participating society. They looked to bring forth the best in we humans, considered all the pitfalls we manipulate, over stepped their own, and reached for the honesty of common decency. It was so down to earth and selfless, and good. Can we still live up to it, as Franklin implied? O gosh, we need a really big big wake up for a lot of people, politicians and voters. They gave us the tools, the framework, it’s not dissolved yet. How do we get this education out? It is so amazing that all this even came about. Thanks again for having this symposium!
Daneen says:

May 1, 2010 at 9:25 pm

“our country’s strength is dependent on its Constitutional backbone”. It seems to me that in the plethora of labels tossed out these days–liberal, conservative, democrat, republican, independent, etc — the Constitution itself has been completely forgotten. I identify myself as a Constitutionalist and people actually ask me “What’s that?” How sad that they do not even ASSUME a meaning for that label…

I applaud and appreciate what you’re doing here, it is more crucial now than at any time in our history–will spread the link!
Bob Greenslade says:

May 2, 2010 at 12:32 pm

You wrote:

“Today’s reading, Federalist 3, begins to address the benefits of the new government proposed by the U.S. Constitution, vs. a government of independent, sovereign states, as some at the time advocated.”

It appears you are asserting that the Constitution consolidated the States into one nation and they are no longer sovereign entities because they surrendered their sovereignty to the federal government.

Please explain your comment. Thanks.
Constituting America says:

May 2, 2010 at 1:50 pm

Hi Bob – Thank you for your question! Ours is a federal system. Often people are confused about it, and this is one of the reasons we initiated this project – to try to address concerns just as you mentioned. If you look at the preamble, our Constitution makes clear that the beginning and the end of the government’s authority comes from the consent of the people. We the people desire to form “a more perfect Union; establish Justice, insure domestic tranquility and provide for the common defense…. ordain and establish this Constitution.”

By ratifying the U.S. Constitution the people caused the State to cede certain powers to the federal government. Both the Constitution itself and the founders who drafted and confirmed it imply only that states ceded the powers enumerated and listed in the U.S. Constitution as powers belonging to a federal government. All other authority continues to rest with the people and the states respectively. When the Bill of Rights was added to the Constitution, both the 9th and 10 amendments reaffirmed this principle.
Roger Jett says:

May 2, 2010 at 6:44 pm

Excellent comments by Cathy and all ! I would like to add a quote attributed to James Madison that for me is pertinent to the discussion as it pertains to the sovereignty issue.
” We have staked the whole future of American civilization, not upon the power of government, far from it. We have staked the future of all of our political institutions upon the capacity of mankind for self-government; upon the capacity of each and all of us to govern ourselves, to control ourselves, to sustain ourselves according to the Ten Commandments of God.”
Kristine says:

May 2, 2010 at 7:54 pm

Roger Jett regarding your post: WOW. Intuitively, we know this, and it is what our parents taught us; but here it is in black and white from the Father of the Constitution. Very powerful and worth remembering. This incident in NYC is a good example of one man using his intellegence and God-given sense to prevent a terrorist attack. What if he decided not to get involved and let someone else take care of the problem. Boom.

Thanks for the quote.
Andy Sparks says:

May 2, 2010 at 8:05 pm

Unfortunately, it can not be proved that James Madison said that. Especially with the proliferation of the internet, bogus quotes are flying around everywhere that can not be appropriately attributed to the authors. Below is a reference asking the question of the validity of this very quote:

http://candst.tripod.com/misq1.htm
Roger Jett says:

May 2, 2010 at 11:06 pm

I agree with Andy Sparks that we can all too easily latch on to a bogus quote off of internet sources. I apologize for not citing the source for my earlier post concerning a quote that has been “attributed” to James Madison. My source for ascribing this quote to Madison is Frederick Nymeyer, Progressive Calvinism, (January, 1958), Vol. 4, p. 31.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

April 30, 2010 – Federalist No. 3 – Janine Turner

Federalist Paper 03, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 03, Federalist No. 03

Friday, April 30th, 2010

Howdy from Texas. I thank you for joining us today and I thank today’s guest scholar, William B. Allen, for his words of wisdom about Federalist Paper #3. Thanks William!

What I continue to find fascinating is how the Federalist Papers are consistently relevant today. John Jay’s Federalist Paper #3 is one that really motivates contemplation. Publius speaks about how the unity of the country, the states, is the best way to combat an enemy or foreign intrigues. Unity, a house united, is definitely more advantageous than a house divided. Objectivity trumps subjectivity.

Yet, if the states are to acquiesce their rights and inclinations to defend themselves, then it is the duty of the Federal government to adequately protect the states. The father must protect his children. The Federal government needs to pay heed.

John Jay provides examples of how domestic disputes amongst small countries in Europe often lead to major battles – battles that then enveloped several nations for many years. We have certainly seen this repeat itself subsequently and most recently in the 20th century yielding morbid and tragic devastation.

During our country’s infancy, unity amongst the states was paramount for a strong and unilateral defense.
However, ironically, the same principle applies today. With the current situation in Arizona, we should remain first and foremost unified in dealing with the crisis at hand. Brother against brother, state against state, breeds contempt and failure.

It is prophetically proposed by our founding fathers that a unified action yields the best result for the nation.
Let us remember that unity will reign victorious and gather wisdom to deal with all obstacles.

We are the United States of America.

God Bless,

Janine Turner
April 30, 2010

P.S. Don’t forget to check out our “We the People 9.17 Contest” for kids, my daily Video Podcasts and the archive of the daily essays written by Cathy and me and our daily guest scholar!

Responses to “April 30, 2010 – Federalist Paper No. 3 – Janine Turner”

Maggie says:

April 30, 2010 at 1:48 pm

I have found it fascinating that the reading of Federalist #3 is so timely with what is happening in AZ today. This reading has, thus far for me, presented the greatest corellation to current events. What was true to life when the constitution and Federalist papers were written is true today and will continue to be so. That is why we must continue to learn and protect the great gifts that were given to us with the writing of these documents.
Jessica D. Hicks says:

April 30, 2010 at 3:07 pm

.
Marc W. Stauffer says:

May 1, 2010 at 10:50 am

The wisdom of this Founding Father continually astounds me. His comments are as relevant today as when he first put pen to his thoughts. The old adage of; “a house united stands strong, but a house divided falls”, rings true in Jay’s dissertation of the need for unity. I must admit that it makes me nervous to hear states give thought to succession as this tears at the fabric of our unity. We need to continually use the strong material of historical knowledge to weave the cloth of unity, repair its holes of strife, and keep it fresh and new!
Nancy Wujcik says:

May 1, 2010 at 5:14 pm

I am enjoying this project and want to thank you all. I especially enjoyed your comments today about how the Arizona law and things that divide us make us more vulnerable to outside forces just as was written in this FederalistPaper. I think relating these to present day events make them mean more to the reader. Thanks!
Bob Greenslade says:

May 2, 2010 at 12:39 pm

You wrote:

“Yet, if the states are to acquiesce their rights and inclinations to defend themselves, then it is the duty of the Federal government to adequately protect the states. The father must protect his children.”

Are you asserting that the States surrendered their “rights” to the federal government?

“The father must protect his children.” Are you asserting that the States spring from the federal government?

Thanks.
Constituting America says:

May 2, 2010 at 4:45 pm

Hi Bob – Thank you for your question! Ours is a federal system. Often people are confused about it, and this is one of the reasons we initiated this project – to try to address concerns just as you mentioned. If you look at the preamble, our Constitution makes clear that the beginning and the end of the government’s authority comes from the consent of the people. We the people desire to form “a more perfect Union; establish Justice, insure domestic tranquility and provide for the common defense…. ordain and establish this Constitution.”

By ratifying the U.S. Constitution the people caused the State to cede certain powers to the federal government. Both the Constitution itself and the founders who drafted and confirmed it imply only that states ceded the powers enumerated and listed in the U.S. Constitution as powers belonging to a federal government. All other authority continues to rest with the people and the states respectively. When the Bill of Rights was added to the Constitution, both the 9th and 10 amendments reaffirmed this principle.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

April 30, 2010 – Federalist No. 3 – The Same Subject Continued: Concerning Dangers From Foreign Force and Influence (Jay) – Guest Blogger: W. B. Allen, Professor of Political Philosophy at Michigan State University

Federalist Paper 03, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 03, Federalist No. 04, W. B. Allen PhD

Friday, April 30th, 2010

Essay # 3 investigates the causes of war. Publius seems to raise the question, not merely from curiosity but rather because it’s important to be prepared to prevail in war and also to place one’s state in the position to avoid war. The Federalist Papers seem to adopt this perspective in its approach to foreign policy inquiring not how to adopt an active posture for engaging in war but rather how to make war as little likely as possible. The argument is laid out by the end of the third essay, and then stated outright in the fourth essay, where he says of the American people, “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.” This deterrence theory is based on a number of factors deriving from human nature, and it therefore forces us to ask whether Publius generally understands the causes of war. Again, in the third essay we see a claim that the pace of America highly depends upon observance of the laws of nature towards all foreign powers, a thing more perfectly accomplished in proportion as we have one national government rather than thirteen or some other number of states. We expect, therefore, to close with an argument from efficiency, less chance, greater consistency, and greater stability in foreign relations.

Surprisingly, Publius does not do that in the third essay. He instead states the following: “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.” He argues not from efficiency but from the character and talents of the officeholders. The first reason for increased national security is clearly that one obtain the best statesmen. The question of safety calls for intelligence and consistency.

It is wise to avoid war, and Publius illustrates this by arguing that “Hence, it will result that the administration, the political councils and the judicial decisions of the national Government will be more wise, systematical, and judicious, than those of the individual States, and consequently more satisfactory with respect to other nations, as well as more safe with respect to us.” The chief means to avoid war is good order at home, and it includes satisfying other nations.

A third reason for a foreign policy of justice and consistency is that the national government will avoid tempting other nations to offend the United States because a United States that is well organized will be successful and prosperous, and that is what will bring peace. It will dispose other nations to cultivate our friendship as well as yielding strength. This will attract other nations into peaceful association, and this is what makes it possible to avoid war.

W. B. Allen

Michigan State University

Professor William B. Allen is emeritus dean and professor of Political Philosophy at Michigan State University.

39 Responses to “April 30, 2010 – Federalist No. 3 – The Same Subject Continued: Concerning Dangers From ForeignForce and Influence (Jay) – Guest Blogger: William B. Allen, Professor of Political Philosophy at Michigan StateUniversity”

Susan Craig says:

April 30, 2010 at 7:12 am

So far the argument for union, is the implied understanding that in strength there is peace.
Carolyn Attaway says:

April 30, 2010 at 10:06 am

There was so much in Paper #3 that lends itself to a good discussion. However; the 3rd and 4th paragraphs sum up the whole paper for me when John Jay talks of Foreign Arms and Influence; and Like Kind arising from domestic causes. And whether the wars happen or will happen because of REAL or PRETEND causes that will PROVOKE or INVITE them.

I am constantly amazed at the insight our Founders had regarding the present State of the Union during their time, as well as future conditions that could, and most likely will, occur. Without the strength of a Union, the individual states existence were in danger because of their lack of reinforcements from the other states; that combined with their statenot only ensured safety of external forces, but internal conflicts as well.

Think of all the small countries in Europe that have been abolished and/or reformed into other countries because of internal or external conflicts. The country of Yugoslavia, for example; until 1941 was the First State of Yugoslavia with a monarchy rule. The Second of Yugoslavia was from November 29, 1943 until June 25, 1991, and it was a socialist successor state to the Kingdom of Yugoslavia and existed under various names.

The Federal Republic of Yugoslavia was from April 27, 1992 until February 4, 2003 and it was a federation on the territory of the two remaining republics of Serbia and Montenegro.
The Union of Serbia and Montenegro was formed on February 4, 2003, and officially abolished the name “Yugoslavia.” On June 3 and June 5, 2006, Montenegro and Serbia respectively declared their independence, thereby ending the last remnants of the former Yugoslav federation.

This present day example could have very easily happened to any individual state during the Founders time if they allowed themselves to believe they were stronger as an individual entity as opposed to an entity within a greater union. As John Jay explains, there were threatening forces for the Border States, as well as internal conflicts with native Indians within other states. With a Union, individual states were protected from aggressors, as well as being prevented from becoming a rogue state that would threaten the security of the Union.

Today, many of our states are experiencing turmoil from neighboring countries, other states, and citizens. The Founders had put in place measures on the Federal level to keep the Union secure. However; I find it ironic, that today it is the Federal government that is threatening the security of the Individual States.
Chuck Plano, Tx says:

April 30, 2010 at 10:08 am

The very argument that is made in Federalist #3 for Peace through Strength was the very essence of the Ronald Regan Administration. Remember when he refused to give up SDI and the media belittled him and yet what do we see today, missile defense. When Regan let the summit in Iceland go with out an agreement with the USSR on arms control every one said we were doomed and yet who fell from the world stage, the USSR and not the United States. The most important question is where are we headed today and how will we mantain our strength when those who are supposed to be our leaders and willing to give up our strenth by crippling our economy after all it is economic strength that produces the real stength in any nation.
Bill Kenagy says:

April 30, 2010 at 10:17 am

In “strength bringing peace” the opportunity then will present itself to aid our fellow man rather than war with our fellow ma.
Shannon Castleman says:

April 30, 2010 at 10:36 am

Chuck, insightful. I fear where we are headed today is disater on a global scale. I think Jay ande others of the time would tell us today, “Let’s be as strong militarily as e can, so that others will not cause us harm. In return, let’s not have troops in fifty nations, (lik we do today), so that other nations will not feel the need to wage war against us.”

What better use of our resources if we took 80% of the troops we have spread around the world and secured our borders, south and north. I care not what the North Koreans do (our troops there); I care intensely what the Mexicans do.
Susan H. says:

April 30, 2010 at 11:06 am

Hi All,

I’m catching up on my reading today. Thank you everyone for your great comments.

I was struck today by the passage “Because when once an efficient national government is established, the best men in the country will not only consent to serve, but will also generally be appointed to manage it…..” I feel like maybe at this point in time we don’t have the best men or women in the country serving. Of course this behooves the population to place better people in office.

I also wanted to say that I agreed with the comment from a few days ago regarding how the founding fathers WANTED the people to know what the government was doing. It really does feel to me like the present government is being sneaky.
Randy Nutt says:

April 30, 2010 at 11:13 am

I took from Federalist #3 the need for a centralized govt to protect the whole of the States and wage war if necessary… Federalist #3 ties in to the border question we have today in my opinion… if we have between 12 and 25 million illegals crossing the border and Art IV section 4 of the Constitution has the Federal Govt responsible for protecting the borders from an invasion, then if the numbers I stated are correct, what, pray tell, would constitute an invading force than up to 25 million non-citizens?

Just saying…
Chuck Plano, Tx says:

April 30, 2010 at 11:28 am

Shannon it is very frightful as we see what is going on, on our southern border. In the late 1980′s after Casper Winberger was Secetary of Defense he wrote a novel outlining 5 senerios where the USA could fing itself in war. One of those was Mexico, as that country would become so corrupt and violent due to it’s drug problem that the US would have to send troops to stabilize it in “our” national security interest. It appears we have reached that point but our Federal Government has niether the plan or the will to do so much less secure our own borders.
Constituting America says:

April 30, 2010 at 11:34 am

Morning. It’s Janine. I think it is very interesting and quite relevant how John Jay talks about the states dealing with their neighboring countries in a passionate manner as opposed to the Federal government who would deal with the state’s neighboring countries in a cool, objective manner.

This begs the question: If the Federal government is to protect the states re her foreign borders then should they not neglect the states needs and causes? What happens if the states are left in middle of desperate situations with no aid from the Federal government. Is this where the Tenth Amendment comes into play?
Susan Craig says:

April 30, 2010 at 11:38 am

I think that in their worldview the order of responsibility went person, family, local, state and last and only as a final resort federal.
Damon Wilson says:

April 30, 2010 at 12:36 pm

Professor Allen points out something that I’d never thought about before — the question of what should nations do to avoid invasion. It appears that the founders didn’t think that merely being friendly was a sufficient basis for ensuring that one would be free from an attack. President Reagan comes to mind, but I’d be curious what Presidents over the 20th and the 19th Century before thought about this principle?
Gary says:

April 30, 2010 at 12:39 pm

Janine. I think your scenario is a prime example of when the 10th Amendment would be very operative. After all, the central government cannot state that an obligation is Constitutionally reserved to it, then refuse to exercise that obligation. I beleive Congress has defacto abrogated the right to “control naturalization” and the sovereign states must do it themselves.
Carolyn Merritt says:

April 30, 2010 at 1:22 pm

@Constituting America and Gary: James Madison wrote in the Federalist No. 45 that “The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the StateGovernments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce;…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.”

In my humble opinion, I believe Arizona is correctly operating under the States’ Rights set forth in the 10th Amendment because the Congress is not doing its duty to protect Arizona from its loss of life, liberty, property and prosperity.

What say someone else?
Carolyn Merritt says:

April 30, 2010 at 1:24 pm

Federalist #3 is the first of 3 of Jay’s arguments that the Articles of Confederation are inadequate for our defense. In this third paper, Jay puts great emphasis on the reasoning for a national united Government as opposed to the 13 states each governing their own way.

He states that we Americans long hold the belief that in order to continue with peace and prosperity; we do so under a single governing body, the federal government. The first provision by the governing body is the safety of our Country and We the people. Though the Founders were more concerned about our being protected against foreigninvasions and influence, they were also concerned even then about the dangers of domestic insecurity. Jay goes on to state that through a friendly and efficient national government can we best be protected from foreign hostilities. Our Nation would not be the provocateur because we would be an America that is united. “The Union tends most to preserve the people in a state of peace with other nations.”

Jay goes on to state that it is extremely important that in order to maintain the peace of America we respect and observe the laws of nations in which we have signed treaties and this can be done only by and through one united Government, not by the several states or sovereignties.

He gives the sound reasoning as to why we needed a national government run by men of intellect appointed to serve wisely, systematically, and judicially. Jay felt that left to their own governing, separate states would selfishly guard their own peoples and borders.
Maggie says:

April 30, 2010 at 1:35 pm

Federalist #3, for me, drew the strongest parallel thus far to what we are experiencing today. Jay states that “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.” Has our government lost sight of this? “We the people” have stated time and time again that our biggest concern is safety. Jay also states that “The neighborhood of Spanish and British territories, bordering on some States and not non 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”. Doesn’t the Federal government have a duty and an obligation to HELP AZ? Is this not one reason WHY a centralized government was established rather than having several smaller governments?
Maggie says:

April 30, 2010 at 1:42 pm

@ Carolyn….I too was struck by the fact that our founding fathers had the foresight to understand that dangers can come not only from “Foreign Arms”, but can also arise “from domestic causes”. These wonderful men seemed to have thought of everything that could possibly go wrong. God Bless them.
Susan H. says:

April 30, 2010 at 2:01 pm

To Carolyn M.

I wholeheartedly agree that AZ is doing the correct thing considering that the Federal government can’s seem to find the will to protect that border. Here we are reading the writing of our founding fathers arguing that the federal government is needed for just this sort of thing and yet currently the federal government is failing. It will be interesting to see if any other states follow suit in this issue.
Constituting America says:

April 30, 2010 at 2:08 pm

Howdy from Texas. I thank you for joining us today and I thank today’s guest scholar, William B. Allen, for his words of wisdom about Federalist Paper #3. Thanks William!

What I continue to find fascinating is how the Federalist Papers are consistently relevant today. John Jay’sFederalist Paper #3 is one that really motivates contemplation. Publius speaks about how the unity of the country, the states, is the best way to combat an enemy or foreign intrigues. Unity, a house united, is definitely more advantageous than a house divided. Objectivity trumps subjectivity.

Yet, if the states are to acquiesce their rights and inclinations to defend themselves, then it is the duty of the Federal government to adequately protect the states. The father must protect his children. The Federal government needs to pay heed.

John Jay provides examples of how domestic disputes amongst small countries in Europe often lead to major battles – battles that then enveloped several nations for many years. We have certainly seen this repeat itself subsequently and most recently in the 20th century yielding morbid and tragic devastation.

During our country’s infancy, unity amongst the states was paramount for a strong and unilateral defense.
However, ironically, the same principle applies today. With the current situation in Arizona, we should remain first and foremost unified in dealing with the crisis at hand. Brother against brother, state against state, breeds contempt and failure.

It is prophetically proposed by our founding fathers that a unified action yields the best result for the nation.
Let us remember that unity will reign victorious and gather wisdom to deal with all obstacles.

We are the United States of America.

God Bless,

Janine Turner
April 30, 2010

P.S. Don’t forget to check out our “We the People 9.17 Contest” for kids, my daily Video Podcasts and the archive of the daily essays written by Cathy and me and our daily guest scholar!
Susan says:

April 30, 2010 at 2:28 pm

I am struck by the amount of thought put into these papers to explain the authors’ reasoning for the adoption of the Constitution to the people. It is a stark contrast to today’s bills which are so long and convoluted that I don’t think anyone can read them let alone explain them and probably few even try.
John Harris says:

April 30, 2010 at 2:34 pm

I believe some of the founding fathers had an idealistic view of it’s new country and republic. Most specifically, Monroe believed that the brotherhood of republics transcended national boarders and expansion of induvidual liberties was central to the policies of modern governments born of revolution and the revolution would tear down national bounaries and unite mankind. Once the revolution was over he/they realized real quick that self interest was a greater force than any republic. England, France and others coveted the riches of the new world. The founding fathers found themselves having to preserve the united colonies (thank you Federalist Papers), protect them from invasion and promote trade abroad. And the best way at the time was through diplomacy and not war.

Translating to our present situation we find ourselves relying on others for natural resources, trade abroad has resulted in a large deficit, and our boarders have been invaded. It is vital that every citizen in America today understand our Constitution and how it was formed. If we dismiss the wisdom of our forefathers we are doomed to tyranny.
Jesse Stewart says:

April 30, 2010 at 3:06 pm

You all have said things that struck me when reading Federalist 3. But what really stood out, as others have suggested, was that the best men will fill the roles of “administration, the political counsels, and the judicial decisions” of the national government because there is a large population in the Union from which to draw these men.

Would Jay roll over in his grave given the quality and honor of those serving today? It is our responsibility as citizens to ensure that the “best men” are filling those important roles!

PS: realized I didn’t put my last name on previous comments; not intentional!
Eli Hazelett says:

April 30, 2010 at 5:08 pm

There would seem to be many ways that a country could fall apart — does an invasion have to be formally waged by a nation as such or can it come from an unorganized group?
Peggy Brittain says:

April 30, 2010 at 5:48 pm

“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.”

It seems to me that our national representative government has turned this around. They are the ones who justify their actions, and oppose their acknowledging, correcting, or repairing their errors and offenses.

If we cannot believe in our national government to protect us from harm and ensure our safety then don’t the states have the right to protect themselves?

I don’t think our founders intended for our representatives to be career politicians. This state has led to our elected officials being more protective of their own self interests and their voting blocks than protecting the citizens of the states. Today, the interests of our elected officials is all about power and control. To them our founding documents are living documents meant to change with the times. I am learning that it is just the opposite. Our founding documents are just as relevent today as they were at the time of their writing.
Christina Quinn says:

April 30, 2010 at 6:16 pm

It is staggering to me from our vantage point now looking back through time that that we in this present generation have so much greater abilities than our forefathers to both study historical documents and communicate to our fellow citizens, yet do not. It was beyond comprehension that a day would come where information regarding all past and present civilizations, their failures and successes, their forms of governments would be or could be juxtaposed and weighed against each other. The vast superiority of Our Constitution is not even debatable in world history and is in fact I would suggest self-evident to all that apply their reason, but therein lies the rub. It was a given during the time of our forefathers that applied reason would win the argument and that the citizenry out of self-interest would deem it necessary to educate themselves in a form of government that was to be run by themselves. Out of all the considerations, safeguards, checks and balances, they sought to circumvent or eliminate in the wording of the Constitution the one blind spot now a glaring omission was not to mandate it’s reading by the citizenry. The implied self-interest of a government by the people for the people for our forefathers it went without saying that all citizens would know and read the Constitution and thus understand our foundation and liberty. Again beyond their comprehension would be a day that “self interest” for a majority of citizens regarding their government could be assessed as what they can “Get from” it not “Vest To” it, yet here we are. While “Foreign Force and influence” were on Jays mind clearly foreseen as a great potential threat not so was the idea of threat of domestic ignorance… that specter that topples all freedom and liberty, let us pray for the defeat of ignorance in our this Constitution Revolution:-) .
Nickie Summers says:

April 30, 2010 at 6:39 pm

I to am amazed at the foresight of the Founding Fathers. I’m as amazed at the ignorance or disregard from our current leaders to bring history forward as guidance on what NOT to do to overcome troubles today.

Fed Paper #3 – As I read it, I couldn’t focus on the paper itself…all I could focus on is the relevance to Arizona vs. the Federal Government. Jay states that a national government is more likely derterrent for warding off war than astate…and I agree. But since the Federal Government has been unable the state has to step in.
Ron Meier says:

April 30, 2010 at 7:41 pm

@ Janine, the Arizona situation seems to bring rebirth to the Confederation instead of the Union. Only 4 states share the Mexico border and our Representatives and Senators spend their days about 2,000 miles away in Washinton, DC, far from the points of conflict. Because they are so far away, and the 46 states they represent don’t have the samedirect problems with illegal immigration, they seem to be acting as if they lived in a Confederation, where they don’t care enough to act on the problem because the problem is not in their own districts.
In many instances such as this, our elected representatives are acting more like delegates than representatives of a Republic. As delegates of a state, they vote only for those things that are problems for their own states; as representatives, they should be voting for those things that are in the national best interest, even if not in the best interest of their home state.
Greg Zorbach says:

April 30, 2010 at 8:01 pm

@John Harris… I agree in your entire post, but would amplify your statement: “And the best way at the time was through diplomacy and not war.” It was probably true that in 1787 the new country was weak enough to the point that diplomacy was the only option in most cases of foreign provocation or dispute (therefore, the recurring argument for adoption of the proposed Constitution to replace the AOC in order to give the country a stronger national government). Several times in our history when we were not strong enough militarily, our diplomatic efforts proved to be impotent. The best explanation of national power or effectiveness in foreign affairs I have heard was presented at the Naval War College by a visiting lecturer from the government in the late 80’s: any nation’s power is like a stool with four legs. The legs are military power, economic power, national resolve or character, and the last one that depends the most on the other three – diplomatic skill. However, if the stool’s legs are not in relative balance, national effectiveness in foreign affairs (the most critical being the avoidance of war without resorting to the ‘tribute’ that led Jefferson to take on the Barbary pirates) is diminished. I believe that Chief Justice Jay was make this same point in argument for adoption in Federalist 3.
Beverly Benson says:

April 30, 2010 at 11:39 pm

If our country became unified would it mean that we would have more people to select from in terms of making up the military force? And I guess I haven’t read the Articles of Confederation, but I noted that the Constitution allows the federal government of the U.S. to have a draft. Would unity mean that the founders wanted to be able to draft people from every single colony?
Cindy Thompson says:

April 30, 2010 at 11:42 pm

Our country has truly been blessed to have men such as John Jay to take such an interest in the nation and to accept the risks that they did. It is really too bad that historians have tried to rewrite their profiles to turn them into lesser men. I am honored to read their essays and thankful for the Constitution we have. I’ll do my part to spread the word about it.
Tricia says:

April 30, 2010 at 11:44 pm

It is amazing how persuasive the 3rd Federalist Paper is. I like how Publius used moderate language throughout the essay in order to gradually convince the reader of his cause. By the end, I found myself agreeing with him in the idea that “strength is peace.” I envy the eloquence of this essay!
Seij De Leon says:

May 1, 2010 at 1:29 am

The Federalist Papers no. 3 makes a point to explain how things will go well, concerning the people running the country. It states that the best men will serve the country, and to defend that explains that “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.” Like what Jesse Stewart was saying, this is nowadays an overall hollow statement, and I’m sure that John Jay could not of envisioned how things really work today. Just because there is a large selection of people to choose from does not mean the best men will be chosen, an unavoidable flaw in any society where the people can make decisions such as these.
Nancy Martin says:

May 1, 2010 at 8:33 am

It interests me that three men could agree so strongly on the benefits of the new constitution that they could all use the same pen name Publius. I’m curious about what this means in terms of the trust they had for one another?
Shannon Castleman says:

May 1, 2010 at 2:02 pm

Nancy, thoughtful question. These men trusted each other because they were Statesmen, not “politicians”. They loved their new country more than they loved to disagree with one another.

They don’t make people like that anymore, at least not many. Could you imagine Pelosi, Paul Ryan, Harry Reid, and a Libertarian doing this together?

I can’t.
Peter says:

May 1, 2010 at 6:22 pm

Dumas captured the spirit of Federalist #3 when he wrote “All for one – and one for all.”
Susan Craig says:

May 2, 2010 at 8:35 am

What has become inverted is the foundation of peace. What the founders here argued is that diplomacy functions best when supported by three legs. These legs are; one a strong defensive capability (making it hazardous to attack), two a strong economy (ability to sustain) and three a collective understanding of principle and the will to back them up. Currently termites are attacking all three legs and still insisting that diplomacy unsupported will work.
Lynne Newcomer says:

May 2, 2010 at 10:20 am

Hello all. Peace through strength,,I think the founders knew this and up until these past few years that axiom has held us in a secure grip in a very dangerous world.Reality exists and to pretend that we can behave out side it because it suits our wishes is a dangerous and irresponsible failure of understanding.I expect our Government to be adults,people who will hold themselves errect and bear the burdens of truth, and this does not mean we are imperialist ,Facist,etc.These over the top charges make me wonder about the depth of understanding of those using these distructive words.It stikes me as as very young and immature teen who has heard a few new words and can’t wait to use them,and have no idea how foolish they appear .I am imbarrased for them most of the time.
Strong mature silence is quiet and deliberate in its action and words. Unity is in our best interest and I pray for a leap of comprehension on the part of America.
Andy Sparks says:

May 2, 2010 at 12:24 pm

Shannon, you may find it interesting to know that two of the people who wrote the Federalist Papers (Alexander Hamilton and James Madison) went on to become bitter enemies. Madison switched sides so to speak, and joined Jefferson’s Republicans and denounced and worked against Hamilton’s Federalists, and vice versa. Once the Constitution was ratified, they did not work together as statesmen, but became politicians.
Patrina L. says:

May 2, 2010 at 7:25 pm

RE the statement by Seij De Leon: “Just because there is a large selection of people to choose from does not mean the best men will be chosen, an unavoidable flaw in any society where the people can make decisions such as these.”

It is true that people can, have done, and will make mistakes in selecting their leaders via their voters’ voice; however, I fear how much WORSE it would be if the PEOPLE did NOT have the power to make these monumental choices…

Would anyone want the current leaders (or any leaders, for that matter) making these important choices of leadership for us? How much worse would that be? We, as a people, have the CHOICE to oust, what we perceive to be as, any bad lot of leaders at the voter’s box. This is what gives US the power. We must jealously guard it through our own education regarding our national history and our current events. This is what Benjamin Franklin meant when asked by a woman what kind of government the Founding Fathers had given the Country. He responded, “A Republic- if you can keep it.” His answer implies that we bear an ACTIVE responsibility toward maintaining our power as a people. Not only must we educate ourselves, but we must also actively exercise our freedoms through voting. We have been given a rich wealth of freedom and power through our national inheritance, but we cannot become passive because our inheritance will not maintain itself. We, as the ones who have inherited this great gift, have an ETERNAL RESPONSIBILITY toward ACTIVELY preserving it by being knowledgeable, diligent, and vigilant regarding its upkeep, or else it will be stolen from us while we slumber. We the People must insist upon learning about our inheritance of power and freedom, and preserving it through proper tending, or else it will surely wilt and die, yielding us nothing but disappointment and grief, making us very poor inheritors, indeed.

So, the truth of the matter is that if the PEOPLE did not make the choices of leadership, the outcomes would be far worse. I believe that is why the Founding Fathers put the “US” in the USA.
CJ says:

May 3, 2010 at 10:40 am

Amazing how forthright the Founders were and how devastated they’d be today.
There are certainly a lot of words and as my High School teacher said of my essays….”flowery pansies”….The speaking back then certainly were colorful.

In my mind I summed it up to: Together we are strong, separate open to prey..

In this section of Federalist 2 it seems to be their lack of foresight and elitism that America would be a people of thesame kind and equal in religion manners and customs…CJ

Federalist 2……
..”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…”

These paragraphs in 4 struck out at me: CJ

Federalist 4
…”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.
>>>>>>>>>>>>.
hostility and insult have been invited. CJ
>>>>>>>>>>>>

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….”
>>>>>>>>
…. “Have our wars been sanctified by justice……”CJ

…………
This is sad for our government has put us in this position…I fear today with this administration even more so.
America was so very young…… CJ

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 3, 2010 – Federalist No. 4 – Cathy Gillespie

Federalist Paper 04, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 04, Federalist No. 04

May 3, 2010 – Federalist No. 4 – Cathy Gillespie

Tuesday, May 4th, 2010

Hello from Virginia! I made it back from Texas in the wee hours of the morning, thanks to some thunderstorms and unexpected equipment on the runway at Reagan National Airport!

To all who have been posting – Thank you!! We invite all our visitors to add their comments! We love the sense of community, and are learning so much from each of you. If you have a question, please ask it, and if we can’t answer it, hopefully some of our blog participants can!

Federalist #4 elaborates upon a phrase stated in the preamble to the Constitution: ”We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

I’m reminded of a quote of a famous Texan from the 1970′s and 1980″s, Eddie Chiles, who said all he wanted the federal government to do was defend the shores, deliver the mail, and leave him alone! It is no accident that Eddie Chiles started his quote with “defend the shores,” and that so many of the first Federalist Papers touch on this theme of defending our country. It is one of the powers enumerated in the Constitution that the federal government is best equipped to perform.

The other quote that caught my eye was the last phrase: “……how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves.” As citizens of the United States, the more common ground we can find with each other, the better. And the more educated our citizens are about the founding principles of our country, the easier it will be for us to find common ground.

Good night!

Cathy Gillespie

7 Responses to “May 3, 2010 – Federalist No. 4 – Cathy Gillespie”

Bill Kenagy says:

May 4, 2010 at 5:43 am

Note in the preable it says, “promote the general welfare.” Not to provide for the general welfare.
Bache says:

May 4, 2010 at 8:15 am

A quote from Benjamin Franklin…” The Constitution only gives people the right to pursue happiness. You have to catch it yourself.” His saying reflects the ideology of the preamble “to promote the general welfare.”
Roger Jett says:

May 4, 2010 at 10:39 am

Good Morning Cathy Gillespie and All !

In penning what was to become our national anthem, Francis Scott Key in 1814 at Fort McHenry, in his second verse and fourth verse, continued on the theme, “defend our shores” :

On the shore, dimly seen through the mist of the deep,
Where the foe’s haughty host in dread silence reposes,
What is that which the breeze, o’er the towering steep,
As it fitfully blows, half conceals, half discloses ?
Now it catches the gleam of the morning’s first beam,
In full glory reflected now shines in the stream:
‘Tis the star-spangled banner ! Oh long may it wave
O’er the land of the free and the home of the brave

Oh! thus be it ever, when free men shall stand
Between their loved home and the war’s desolation!
Blest with victory and peace, may the heav’n rescued land
Praise the Power that hath made and preserved us a nation,
Then conquer we must, when our cause it is just,
And this be our motto: “In God is our trust.”
And the star-spangled banner in triumph shall wave
O’er the land of the free and the home of the brave!

May God bless us, preserve us and keep us brave and free!
Susan J. Smith says:

May 4, 2010 at 11:34 am

The equality of all people stand on the OPPORTUNITY that our freedom provides. We all have the same OPPORTUNITY to “pursue happiness” without the overreach of government taking from one and giving to another. Everyone has the same opportunity to work hard and succeed, what one chooses to do with that opportunity is up to them. And if you think someone needs help use your money to help them don’t take mine(not that I have any) But I believe that we “reap what we sow” so I’m still sowing baby………
Julie Bedard says:

May 4, 2010 at 12:33 pm

@Bill Kenagy—well said. There is a big difference between “promote” and “provide”. The next queston becomes–what did they mean when they wrote “general welfare”? As we know this also has been twisted and misconstrued throughout time to move towards “social justice” policies. I take it to mean “to promote the general welfare of the UNION”–again to protect and defend the Union from external and internal sources so it remains intact for all people within the Union to live peacefully and pursue their dreams without fear of disharmony, chaos, and war.
Susan Craig says:

May 4, 2010 at 4:34 pm

The conflict of promote and provide occurs within the constitution itself. The Preamble says promote while article 1 says provide.
Kellie says:

May 4, 2010 at 4:46 pm

@Julie Bedard: Well said on the issue of interpreting the “general welfare” of the Union. I have found that those truly well-versed on the Constitution know and understand that meaning to be for the protection of the Union from external and internal sources, NOT that we provide welfare to those in need within the Union, as is currently interpreted. My fear is that it’s proper meaning is not being taught in the schools…

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 3, 2010 – Federalist No. 4 – Janine Turner

Federalist Paper 04, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 04, Federalist No. 04

Tuesday, May 4th, 2010

Howdy from Texas! Welcome to our third week of “90 in 90 – History Holds the Key to the Future.” I can’t believe it is the third week. I thank you for joining us and for all of your thought provoking blogs!! I thank William B. Allen for his wonderful, insightful essays. How lucky we are to have his participation. Thanks William!

This is such an important collaboration! Spread the word about our national conversation and don’t forget to do the readings of the day with your children and/or loved ones! Also, don’t forget to encourage your children to join our We the People 9.17 Contest. Scholarships, Travel, Public Appearances!!

My interpretation of John Jay’s Federalist Paper No. 4 is unity provides strength and strength provides a strategic defense. A strong defense promotes peace, respect and profitable commerce. If a foreign country senses weakness or internal strife then it will be more likely to strike.
The wolf waits for a sheep to separates from the herd before it attacks, attacking only when the sheep is defenseless and without aid.

Relevant today? I say yes. Are we, as patriots, adequately united for the common good? Are we strong economically? Are we strong militarily? Are our representatives ready to face our adversaries with competence and preparedness? Are we truly united as brothers and sister, counties, regions, states? Are we so myopic in our domestic mire that we have lost sight of the wolf? On the wave of the wind wails the wolf. Do we hear it? Are we listening?

God Bless,

Janine Turner

2 Responses to “May 3, 2010 – Federalist No. 4 – Janine Turner”

Harry Stumpf says:

May 4, 2010 at 2:22 am

The news coming out of New York at this very moment about the arrest of a suspect in the attempt to detonate a car bomb in Times Square indicates just how relevant John Jay’s Federalist Paper No. 4 is today. We must never let our guard down.

That our enemies all over the world are willing to and want to wage war as soon as we show weakness was demonstrated this weekend.

As the famous flag says so succinctly, ‘Unite or Die’.
Lynne Newcomer says:

May 4, 2010 at 6:57 am

Well said Janine Turner!!! and thanks for this opportunity.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 4 – The Same Subject Continued: Concerning Dangers from Foreign Force and Influence, for the Independent Journal (Jay)

Federalist Paper 04, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 04, W. B. Allen PhD

by W.B. Allen, emeritus dean and professor of Political Philosophy at Michigan State University

Saturday, May 1st, 2010

Having established the “utility” of the Union for avoiding foreign wars, Publius proceeds to reinforce the argument in essay number four. In the second paragraph he acknowledged the claim that the United States should avoid inviting hostilities, insults, from other nations. But the third paragraph shows how difficult that might be. 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 that absolute monarchs will often make war when their nations are to get nothing by it but for purposes and objects merely personal… These and a variety of 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. What this suggests is that many of the wars that arise will do so because people having the power to make war or to a void war yield to temptations that we find perfectly ordinary in human nature. People see opportunities and try to take advantage of them.

We should question the causes of war and the premise that if we knew the causes it would be easier to avoid war. In this point, though, it seems that the very resource we relied upon in the beginning == namely, the people with the power to decide — is also one of the chief causes of war. People in office who yield to temptation happen to be one of the chief causes of war, and Publius reminds us of this.

This is not an aberration. All we need do is to expect leaders to be human to expect these causes to operate. That is not the exclusive cause of war. Publius is clear about this, but it is the most difficult to deal with. And in that respect we ask once again is the Union better at dealing with the causes of war? will the Union make it less likely that notional office holders yield to personal illusions that carry their nation into war? The significance of this is that with the national union our personal illusions come packed wait a far greater punch In spite of that, Publius argues that, yes, in spite of greater fire power, the greater temptations, the greater illusions, the answer is yes. How?

Publius does not claim to alter human nature one bit. He suggests, though, that we need to pay as close attention to the effect of the new government upon the governed as upon those who govern. There is a deterrence theory in essay four that suggests the response: “Wisely, therefore, do they consider union and a good national government as necessary to put and them in in such a situation as, instead of inviting war, will tend to repress and discourage it.” Then he repeats the argument from essay three, namely, that a Union will foster the involvement of the “experience of the ablest men” in the entire nation in guiding the nation. But he adds a caveat that was not in essay number three, namely, that “it can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each.” That is a new argument, an argument that a government for the union can in fact create homogeneity where diversity existed previously: e pluribus unum.

Professor William B. Allen is emeritus dean and professor of Political Philosophy at Michigan State University.

28 Responses to “May 3, 2010 – Federalist No. 4 – The Same Subject Continued: Concerning Dangers from Foreign Forceand Influence, for the Independent Journal (Jay) – Guest Blogger: William B. Allen, emeritus dean and professor ofPolitical Philosophy at Michigan State University”

Ron Meier says:

May 2, 2010 at 11:40 pm

Those bumper stickers “War is Never the Answer,” and similar slogans always bother me because they assume that there are no humans who would ever choose war over peace. History proves that this simply is not true. I don’t know where I read it, but I remember reading sometime in the past several years that there have been at least two wars going on somewhere in the world every year of recorded history.
The idealistic left assumes that peace is normal and conflict is abnormal; in my analysis of history, conflict is normal and peace is an anomaly. We don’t even have to look at the history of nations; we can look at families, homeowners associations, clubs, and the like, and what we find is that conflict is normal and peace is not. When good nations have unilaterally disarmed in the name of peace, we normally find that war comes shortly thereafter. Therefore, we should always be prepared with a strong defense.
Shannon Castleman says:

May 3, 2010 at 6:42 am

My question to you all: After reading #2-#4, Do you believe our Founders-if the came here in a time machine-would support or not support our being in the Middle East right now?

Most of me says no, but a small part of me says maybe. Any thoughts??
Susan Craig says:

May 3, 2010 at 7:25 am

I find it very telling that the first four papers in defense of the new Constitution dealt solely with mutual defense and security! It is almost as if they wished the primary and dare I say almost the only purpose of the Federal government was dealing with external influences leaving the internal to the individuals and their respective States?
Jeff James says:

May 3, 2010 at 8:32 am

Isn’t it interesting that one of the main points in Federalist #4 is the balance of trade and the U.S. ability to supply ourselves with commodities once supplied by India and China. Times sure hve changed!
Roger Jett says:

May 3, 2010 at 9:31 am

In answer to Shannon, who posed the question ….” would our founders support or not support our being in the Middle East right now? I think that at least some insight can be obtained by studying our involvement in the “First Barbary War 1801-1805″ and the “Second Barbary War 1815″. Based upon the bold actions taken by the young United States with it’s fledgling military at that time, I believe it is probable that the Founders would be in support of any action that has taken place in recent decades to protect American Citizens and American commercial interest. However, I suspect they would not have engaged in the level of police action and nation building that our modern time leaders have burdened us with.
Carolyn Attaway says:

May 3, 2010 at 9:52 am

I am going to miss John Jay’s writings in these Papers. I find his Papers very easy to read and very thought provoking.

Shannon, in paragraph 3, our conflicts with Iran and Iraq immediately jumped into my mind. Many speculate why we entered this war; national security, oil, democracy, many more views, and a combination of many. But with both Iraq and Iran, their leaders have expressed an ambition for themselves and their country that has enveloped the rest of the world. Unfortunately, a down side of the founder’s logic of being a strong union is that we have became too strong and we are depended upon by the rest of the world to intervene in global crisis. I do not believe our founders would have wanted this for their beloved Union, but could they themselves have prevented it given the cost of noinvolvement. As Edmund Burke, a supporter of the American Revolution said “All that is necessary for the triumph of evil is that good men do nothing”. If the Middle East conflicts happened during our founder’s time, we probably would not have become involved, at least not to the degree we are now. But given the domino effect of global fallouts today, I believe they would feel they had no choice but to intervene.

Why? In paragraphs 7 through 10, John Jay writes of America’s involvement with China and India, and how that trade involves other countries. He explains how this trade can irritate other countries with our success in commerce and in our navigation of the oceans that give America a greater share in the territories that they at one time monopolized. So even at this time, America was heavily involved in foreign affairs and commerce; the founder’s wanted to protect the Union’s stakes of interest in other countries and this was one of their reasons for the States to be unified.

The last paragraph could be taken from any Tea Party and Patriot Activist Guide Book today. Of the many Rallies, Town Halls, and Prosperity meetings I have attended, this is the rallying call: “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, 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.”

The Conservative Movement feels it is way past time to return America to her previous Glory. Was she perfect? No. And a lot of things changed to make her better and her people freer. But the change we did not need is our overbearing and non-transparent government, an overregulated and crippling trade policy, liberal agendas to dictate our military, our resources and finances in ruins, our credit in the toilet, our citizens losing freedoms to the NannyState and becoming quickly discontented and divided.

Was America perfect? No. But; she was the closest thing to liberty and freedom the civilized world had ever known.

I believe most of us on this site probably believe this, otherwise why bother being here.
Donna Hardeman says:

May 3, 2010 at 10:32 am

@Bob Greenslade-before I get immersed in the next Federalist paper, I wanted to take a moment to thank you sincerely for your reply to my question about the Bill of Rights. It was an excellent read – one of the main reasons I’m on this site because of bloggers like you!
Neal C White says:

May 3, 2010 at 10:53 am

Shannon asks the question whether our Founders were to visit us would they or would they not support our being in the Middle East now? It is a good question and one we all should examine. I think the answer to this question depends on the faith we have in who our elected officials are and whether we are convinced of their resolve and purpose. Most of us do not have the time to research and totally understand such matters.

Unfortunately, at present it is doubtful that our leadership are capable of steering our country in the right direction. I guess in the end we will have to depend on God having control and guiding our leaders to make the correct decisions.
Marc W. Stauffer says:

May 3, 2010 at 10:55 am

Remember the school yard bully? How that bully singled out and picked on the weak? There are always going to be the “school yard bullies” out there in the big bad world. Remember what happened when “the picked upon” banded together? You found out that the “school yard bully” wasn’t so big and bad after all and they turned to easier prey.
I think Publius makes an excellent point with his fleets of Britain and trade market competition. The corner on the trade market was held by Britain and the inference that human nature would not stand idly by and allow that hold to simply be taken from them by a small, relatively defenseless state or confederation merits a good understanding. When you are banded together with a common cause strength is realized and with that strength comes deterrence…something every “school yard bully” thinks twice about.
Bache says:

May 3, 2010 at 11:11 am

In the First Barbary Wars,family letters written by Daniel T. Patterson from the Tripoli Prison, Nov. 23, 1803 are fascinating. He was a midshipman, from the shipwrecked frigate Philadelphia and now a prisoner at the age of 17. The prisoners were kept in “a stone bulding, the walls very thick, it is about 20 ft. wide, 25 ft. high, and about 80 ft long, with arches overhead, the walls could scarely be distinquished from cob-webs, and dirt, it had formerly been used to dry hides in, and had never been cleaned out, the strings by which they suspended them are still hanging there. The light and air is admitted through a space in the top, about 4 ft.square, grated over with Iron Bars, by 2 small holes in the side wall near the top, which are almost choked up with dirt and a small grated window near the door, there was the ground for seats and an old sail spread for beds, this place was to contain three hundred persons, the doors shut every evening at sunset and opened at daylight when they want any fot the men to work, they arrange them all in a line and take those they like…but when they misbehaved they are bastionandoed, two small loaves of bread made of barley bran and as much water they can drink is all they live upon.” He latter writes that the Turks had 50-60 million dollars in their treasury, in unchained captivity 1,500 Christians…a demand of $3,000 per sailor for ransom is made to President Thomas Jefferson.

I find these letters from a young man held in captivity along with Captain Bainbridge and fellow officers enlightening. His words paint a picture of the demands of the First War of Terror on our newly founded republic and navy.
Elizabeth says:

May 3, 2010 at 12:46 pm

After reading the fourth paper, the last paragraph jumped out at me. It seemed as though it was written for today and how the world views us. Are we sure it was written in 1787? Talking about how foreign nations, “if they see that our national government is efficient and well administered…they will be more disopsed to cultivate our friendship than provoke our resentment…How much more true does that ring today?
Susan Craig says:

May 3, 2010 at 1:40 pm

I think this is a function of our founding fathers knowledge and understanding of human nature and realistic approaches to dealing with it. Whereas today’s ‘leaders’ wish try and impose their picture of an ideal. They ignore at their peril the human nature that resents and resists imposition of someone else’s picture of how we should be vice how we truly are; flawed and sinful.
Carolyn Merritt says:

May 3, 2010 at 2:06 pm

I too, was taken with the past paragraph of #4 and how it rings true today. We must continue to show our strength and unity, if we do not and we continue on the path our current government is trying to take our Nation, we are going to keep losing the respect we once had from other Nations.

The last sentence of John Jay’s argument was echoed almost 100 years later by Abraham Lincoln: “A house divided against itself cannot stand.” (1858) This holds true today as well.
Ron Parson says:

May 3, 2010 at 2:24 pm

Three short points:
– first: We subsidize consumption and tax investment, which is “eating the seed corn.” It leads to poverty. Thus, a wholehearted second to Carolyn Attaway’s point above, in part quoting “our resources and finances discreetly managed, our credit re-established.” We must do this, and quickly.
– second: re Iraq and Afghanistan: both lacked a “strategy”; both were a full level below that, at “operations.” To distinguish strategy from operations, ask . . . “and then what?” as in, We capture Baghdad . . . and then what? We flatten the Taliban (temporarily) . . . and then what? Both operations implied nation-building, which was scarcely anyone was thinking about; and I believe it impossible by outsiders.
– third: In Washington, a “strategic plan” is neither; Washington abounds in incoherent scraps of strategy. A coherent strategy has 7 elements: context, assumptions, ends/objectives, ways/concepts, means/resources, The Plan, review-adapt loop. If we’d applied that template to Iraq & Afgh before moving in, likely we wouldn’t have done so. The best monograph I know of on this is at http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?pubID=641 by a Dr. Harry Yarger.
Will says:

May 3, 2010 at 3:49 pm

I strongly suspect that the standing and respect we once had in the world has been declining for some time, at least since the close of the Marshall Plan (itself a big social spending program). It’s being going on long before the current administration.
Susan Craig says:

May 3, 2010 at 4:01 pm

Ron your second point is a function tieing our hands via the UN and limiting conflicts to police actions. War is not a sporting event in which ties are a good resolution to the game. War is a Darwinian evolution of the survival of the fittest.
Your third point is one of the things the world holds against us – a lack of continuity/consistency between administrations. Case in point the missile shield promised to eastern Europe in the Bush administration and reneged upon by the Obama.
Carolyn Attaway says:

May 3, 2010 at 6:46 pm

Susan, you have apoint about the lack of continuity between administrations, but I do not believe our past presidents strayed so far from each other as our current President has. Whether Reagan, either Bush, or Clinton; I do not believe our Allies ever considered that the USA would sever ties with them, or desert them. Now, I believe they are unsure of their relationship with us. You mention the world holds this inconsistency against us, but the sad part is many of our own citizens hate America as much as our enemies do. I came across a liberal the other day that hated America so much she said it was time we became a 3rd World country and suffer the abuses we inflicted on other countries. Her history was so skewed, I could not make any headway with her.

So picking up Ron’s point of a strategic plan, I agree that we shouldn’t enter a war with just the first line of attack planned out, and then when that is over, you say “Now what?” I also realize that the world in constantly changing, and priorities are constantly changing, so National Security, our first and foremost proirity, needs to be constantly one step ahead of the world, and sometimes that is very hard to do. Ron, I look forward to checking out the link you provided. I joined Liz Cheney’s group “Keep America Safe”, and she and her contributors have indepth information on our current State of National Security. I haven’t been able to get to the site lately, but I recommend it.
Lynne Newcomer says:

May 3, 2010 at 7:10 pm

Hello all…….There are so many problems these days it is hard to keep up.The question was asked about our waring in the Middle East… great question and a very tall one.I suppose to bring the war to them could be argued for,WE were attacked by an idology not a country,this is very unconventional and a bit elusive by our past experiences.Our tactics need to be contemporary ….(going back, when the English attacked us during the revolution they followed strict and cumbersome methods of war,marching in bright red coats, and were quiet horrified that the militias did not line up and march in neat lines as they attacked, they instead used slight of view, snipers, etc.War had evolved and the Brits fought (may I dare say ,in a bit of an old fashon way) .Are we in a similiar delema ,fighting terrorist who fade from full annoument of their presence sneaking up using our very freedoms against us.Perhaps we need to reconsider some of our tactics.One way I think this is being done are the drone attacks.I know there are those who have objection to their use , but I like using stealt as often as possible .
The mention of BIG government was also brought up. The thought that comes to mind over and over again when I see an attempt to control salt use,sweets , meat. fats and the such is the Temperence movement, and Prohibition. It was so against the Nature of humans and merely a product of the imaginations of the movers of Prohibition that we went right on doing what we knew was our own business.Crime rose and the repeal followed 13 years later. Of course this is a problems for sure but the most important problems we are facing is the Admin, taking control of Health Care, Banks, Financial markets, Car industry,errosion of Property ownership,wiping out contracts and so on and so on.We have much to right and thank God for our Constitution and the will of the people coming to life. This effort that has been offered to us by the contributers of the Constituting America site is a thrill.
WeThePeople says:

May 3, 2010 at 7:22 pm

I really like the attitude this takes toward war: that it’s not something we ever want to invite upon ourselves. Its nice to know that the creators and supporters of our constitution strongly believed that peaceful solutions could be reached. It’s obvious that the constitution did need to give consideration to our national defense, but still. Now, if only our government had this same attitude today…
Charles Babb says:

May 3, 2010 at 8:15 pm

This has been a wonderful opportunity to better understand what my ancestors faced, when they took their “Oath of Allegiance to North Carolina” at a Safety Committee meeting in Bute County (later to become Warren and Franklin Counties) in 1775.

My question is; Where have all the Statesmen gone?

They seem to have been replaced by patisan political thugs (result of career politicans?) that have usurped authority never granted them in the Constitution and have intentionally allowed our Nation to be invaded by a foreign forcewhich they hope will allow them to rip away the very last vestiges of freedom our Founding Fathers had intrusted to us.

When America wakes up and realises what her apathy has brought us, I pray it is not too late for the People to regain control.

Your posts give me hope that the United States can regain her way.
Susan Craig says:

May 3, 2010 at 8:21 pm

Having spent sometime overseas (government sponsored tours and college) and listening to my hosts, it was a generic theme even back in the 1970′s. At that time it was Viet Nam Kennedy had committed to them and Nixon backed out under domestic political pressure.
Tricia says:

May 3, 2010 at 9:13 pm

After reading the fourth Federalist Paper, I’m confused. John Jay sought to show how having a large, unified government would help protect the different states. He uses examples of how monarchies have started wars over personal matters and how three or four little governments aren’t as strong as one big one.

But what’s to stop the leader of the US government from declaring war for personal reasons? What would keep the president in check? I don’t know if I missed that point or if it’s going to be further developed later…
Joshua Foote says:

May 3, 2010 at 9:44 pm

wow the founding fathers were right in so many aspects about war, trade, and just life in general. This country now feeks that we need to be in everyones affairs where as many of the founding fathers felt we needed to stay out of europes affairs. I wish the government was like this today, and that we needed to stay united unlike the polotics of today
Andy Sparks says:

May 3, 2010 at 10:31 pm

To understand fully Jay’s essays regarding foreign relations, it is important to look to the near future of his time. The new republic’s life blood was trade with Europe. While America was rich in staples such as tobacco, timber, indigo, and rice; our manufacturing was relatively non-existant. Basically, we traded our raw materials for manufactured goods. The Quasi-War with France and the War of 1812 with Britain grew out of the disruption of trade with those respective countries. When both countries began boarding, impounding, and confiscating our merchant ships, it became a potential cause for war. Adams was able to avoid a conflict in the late 1790′s through shrewd diplomacy; Jefferson also avoided conflict by implementing a disasterous embargo policy that plunged the new nation into an economic crisis; Madison was not able to avoid war as the war hawks like Henry Clay and John Calhoun demanded the U.S. go to war with Britain in 1812. And although the U.S. claimed impressment and trade violations as the ultimate reason for war; imperial designs on Canada were as much a factor as those sited. So, despite (or because of) Jay’s warnings in Federalist #4, the nation not only could not avoid war, but in the case of 1812, actively sought it out.
Peter says:

May 3, 2010 at 11:58 pm

There are some great comments being made tonight. It is interesting, but in a way obvious (at least to me) that the first few Federalist papers dealt with national security. Not only is the primary purpose of the state to organize for war – something the indiviudal is least prepared to do of all government functions – it is in my judgment the best argument for why the various colonies/states needed to come together into a centralized arrangement – or as one of the founders put it, for their mutual protection and, and this is important, defense.
Seij De Leon says:

May 4, 2010 at 1:43 am

In the last section of the article, Publius makes a remark saying that basically, if we as a nation are strong and powerful, other nations will want to befriend us and not provoke us. At the time, this may have been a more beneficial concept. But now as we are a large world power it has not only earned better feelings from other countries, but their dependency on dealing with larger affairs that our founding fathers may not of foreseen, and in turn made things what some might consider worse for us. I think it is interesting how goals were met, but even with the very thorough analysis that is offered by the federalist papers not everything can be predicted such as foreign dependency.
Sandra Rodas says:

May 5, 2010 at 10:17 pm

I am very much enjoying this reading project and the blog. I read every comment each day. I have been meaning to read The Federalist Papers from “cover to cover” for some time now, and it is nice to have someone inspire me to get busy and do it. It is especially nice to get so many insights from others as I read. Thank you Cathy and Janine for sponsoring this.

In #4 the comment, “when a people or family so divide, it never fails to be against themselves,” keeps coming back to my mind.
There have always been different opinions and different sides of issues — some of them very nation-changing and serious — but I feel a lack of unity in our country at this time that alarms me. It somehow feels different and more hostile.
We are dividing against ourselves. We need to realize that we can disagree without the hostility. The “shape” of our nation will be irregular and asymmetrical as we all push and pull in the different directions that our hard-won freedoms allow. That is OK—it is even good. The harmony improves the melody. However, we need to remember that our center should be one.
Greg Zorbach says:

May 5, 2010 at 11:08 pm

re Tricia and her question: “But what’s to stop the leader of the US government from declaring war for personal reasons? What would keep the president in check?” Only the congress candeclare war. it was true with FDR in 1941 and with W in 2002. Yjey both had to make their points with the people and their representatives in congress.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 4, 2010 – Federalist No. 5 – Janine Turner

Federalist Paper 05, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 14. Essays by Janine Turner, Article I, Federalist No. 05, Federalist No. 05

Tuesday, May 4th, 2010

Howdy from Texas. What a great conversation today. I have to tell you guys, or y’all, I am really learning from not only our guest scholars, but from you who blog. Today was a most thought provoking dialogue. I thank you for joining us and for spreading the word about our “90 in 90.” A great civic discussion, based on the founding principles of our country, is just what our country needs.

I thank Horace Cooper for his wonderful essay today. Thanks Horace!

I related to what Tricia said in her blog today regarding the fact that a union gives us the ability to disagree yet to unite in times of trouble. An analogy would be a family. Families may bicker but – watch out – because they will defend each other when one is confronted or in danger.

In relation to the founding era and Federalist No. 5, there was still so much to be imagined, discovered and resolved. There was an abundance of mystery in America. This is one of the brilliant aspects of Publius – they had such foresight, almost prophetic. They knew there were differences amongst the peoples of America, with a vast portion of America yet to be discovered and claimed, but they also new that it was better to be with each other rather than against one another; to be governed by a unified vision.

As our two hundred thirty -four years have evolved, it has become apparent that our differences did drive stakes into our passions but they did not dismember us. If we had not found stability as a burgeoning union then we would never have been able to survive the challenges that were to be wrought by the civil war and the great depression.. to name a few.

So what is the relevancy of Federalist No. 5 today? It is in defining the boundaries between the federal government and the states in the twenty first century. It is in the understanding of how much power our founding fathers really intended the federal government to have. It is in the reckoning and reconciling of the autonomy the states were intended to have and should have today. The answers to these questions are complex, especially because it is inordinately hard to rein back leniencies that have already been dispersed. Once one foot is in the door, it is very hard to close it again. Has the federal government planted its boots upon our thresholds too boldly?

I dare say many of us would answer yes. I dare say many of us agree with Arizona in regard to the fact that she has the right to make her own laws, yet look at how her autonomy is disrupting the union. Is this not exactly what Publius was predicting? However, today, is the fault with the state or with the Federal government who failed to protect her and her people? Or is it the state’s right to defend herself? Is this not addressed in the Constitution in Article I Section 8.16? I, personally, would like to hear some thoughts from our scholars as to what exactly Article 1 Section 8.16 means in relation to Arizona.

It is only in the educating of America about the United States Constitution that these questions may be answered. Knowledge is power. We cannot appreciate what has been taken away if we have never known what was rightfully ours in the first place.

The monarchies of Europe didn’t want their “people” educated. An educated people meant that they would be able to see the truths. These truths are self-evident: If we don’t utilize our educated voice someone else will speak for us. And all of our rights will be lost.

God bless,

Oh, we have fixed it so all of the comments will be in the same place.. so please comment in the main essay’s comment box (the guest scholar of the day’s essay) from now on.. )

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 4, 2010 – Federalist No. 5 – Cathy Gillespie

Federalist Paper 05, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 05, Federalist No. 05

Tuesday, May 4th, 2010

A big thank you to Horace Cooper for serving as our Guest Blogger for Federalist No. 5. Excellent analysis from Horace, and great discussion! Thank you to everyone for participating! I would like to share a few of the lines and thoughts from today’s post and blog comments that particulary resonated with me.

As many pointed out today, the Founding Fathers were visionary in their ability to look down the road and see what the future had in store for the United States. They had this ability because they were keen students of history, political philosophy, and human nature. David said it well, “Clearly, our Founders were men of letters who understood the precedents of their age.”

As Susan H. pointed out, history does repeat itself. Our founders understood that fact much better than we do today. These days we tend to believe we are immune to the cycles that every civilization has experienced throughout the ages. If our forefathers were with us today, they would certainly be able to predict our future better than we can ourselves!

Carolyn pointed out Horace’s last line, which I loved: ”The very large swath of land and significant population of America potentially were the greatest strength of the nation in unity but could be its greatest weakness in disunity.” I felt that summed up Federalist #5 perfectly!

I am continuing to learn much from you all! Thank you for taking the time to share your thoughts. Please invite others to join us!

Looking forward to Federalist No. 6!

Cathy Gillespie

PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 4, 2010 – Federalist No. 5 Concerning Dangers From Foreign Force and Influence (continued) Guest Blogger: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

Federalist Paper 05, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 05, Horace Cooper

Tuesday, May 4th, 2010

John Jay continues explaining the need for a United States of America as opposed to either an association of 13 separate and individual states or a collection of three or four nation states. Jay explains his view that there were significant arguments in favor of a union, specifically by arguing that the recent experience with England and Scotland offer good examples of the benefits.

“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.”

Taking up an example that may have been familiar in the eyes of his readers was a useful means for Jay to use to help voters understand the issues that were at stake. The situation facing Scotland and England provided an excellent rationale for the states to reconsider the developing position among some that a confederation or a breakup into separate states would be useful in the long term.

Jay concludes: “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.”

Moreover, the problem was not simply that 13 separate nations were never going to cooperate. Jay argued that even if the States were to divide themselves into as many as three separate nations, they would still face problems that would ultimately jeopardize the well-being of the entire people. ”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.”

In fact, it was Jay’s considered view that by their very nature there would be differences between the various nations now comprising the original 13 states; and that this would lead to disputes. Perhaps you could imagine one nation having more commerce, another more population, still yet another possessing larger navy. Whatever the differences might be – they could not be avoided because the nature of things would be that different influences would occur in each of the separate states — they ultimately would lead to conflicts or fear of conflict. If you increased the number of nation states from three to 10, you likely would only increase the risks of conflict threefold or more because success or failure by one nation would cause her sister nation to take notice and feel some obligation to adjust in response.

“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.”

Jay recognizes that having one nation would eliminate all of those peculiar instances at least in terms of their perception to other countries and greatly attenuate the potential for envy or fear to develop internally. Because as Jay recognized, nation states naturally are attentive to the concerns and changes that occur in other countries and tend to evaluate them in terms of whether these changes either advance or retard their own perceived interests it is useful to minimize them wherever possible.

“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.” Jay concludes by pointing out that the very distance between the states and Western Europe made it more likely that any conflicts that would cause government leaders to take sides would occur here in the Americas and not with “distant nations.”

The very large swath of land and significant population of America potentially were the greatest strength of the nation in unity but could be its greatest weakness in disunity.

Horace Cooper is a Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

23 Responses to “May 4, 2010 – Federalist No. 5 Concerning Dangers From Foreign Force and Influence (continued) GuestBlogger: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation”

Brad Tepper says:

May 4, 2010 at 7:35 am

This experience has been fantastic! Thank you Janine and Cathy.

Now I am stumped. In 1786 John Jay argues for and attempts to secure specific and limited commerce for the Northeastern states with Spain. This was not his assignment either. I believe he was to negotiate rights for the entire confederation of 13 states with Spain. His actions, the Jay-Gardoqui Treaty, thankfully was never ratified.

One year later, he authors Federalist #5. He then argues AGAINST such a negotiation and specific treaty for a factional section of the states.

Can someone explain how this 180 seemed to occur? Who/What were the influences?
Susan H. says:

May 4, 2010 at 7:59 am

Good morning everyone,

I had a few thoughts as I read #5. Jay writes “The history of Great Britain is the one 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.” I guess this just drove home the point that history does indeed repeat itself. It behooves us all to be students of history. I recently read a historical novel, The Constant Princess, by Philipia Gregoria. In that novel one of the constant worries of the King was invasion from the Scots in the north.

The other thought I had was in regards to the AZ contoversy. It feels like that state is being forced into a us vs. them position. Instead of the federal government looking out for the Union, they are forcing states to protect their own interests. Now you have other states looking to boycott and withdraw invetments, etc. Sounds to me just like what John Jay was warning against.

I continue to be impressed by the founding fathers.
Chuck Plano, Tx says:

May 4, 2010 at 9:42 am

Susan you are exaactly right the Federal Government has failed in it’s first responsibility and that is to protect our borders. This situation has existed for years it is not new. The border states have had to contend with the failure of the Federal Government and the other states have sat by and said it is not my problem. If we are to mantain this union we had better start thinking about what is best for all the states and not just our own. Texas has been at the for front of the EPA because of some of our emmisions but it is because we refine the majority of the oil and gas in this country if we did not the Northeast and Midwest would freeze in the winter and not have transportation. Remember the righters of the Federalist Papers were arguing for this Union with the Enumerated Powers in mind not this Government we see today.
Carolyn Attaway says:

May 4, 2010 at 9:45 am

Horace Cooper’s last line in his entry summed up Paper #5 for me; “The very large swath of land and significant population of America potentially were the greatest strength of the nation in unity but could be its greatest weakness in disunity.”

I find it curious that I read this article on the day after I watched the 2nd part of the series “America – The Story of Us”. In the Series, the narrator explained how pioneers continued to expand the States through events such as the Lewis and Clark expedition, the Alamo, the Gold Rush and the Westward Movement in order to create a better life for themselves. The point that was constantly stressed that what made America so different from all other countries was the ability for their people to be free and that they could carve any life they wanted for themselves.

The Series went on to explain how Americans in the West wanted to be connected with the East, so with the existance of steamboats and the building of the Erie Canal, the expansion of commerce crossed the continent and had a major impact of the American way of life.

The great need for commerce and the economic differences between the Northern and Southern States led to a great discord within the Union. This difference eventually led to the Civil War.

I think of the Civil War in this Paper, because I wonder if the Founders had not pushed so hard to create a Union, if the Civil War would have ended differently. Would the Southern States have remained intact, or consumed into the Northern States after their defeat? Would the Northern States have had the right to demand the abolishment and expansion of slavery?

I find that the Founders relentless drive to form a Union may not have prevented disunity between the States, but the formation of the Union gave us an ending which could have otherwise been disastrous to America as a whole.

Like Great Britain, the individual States could have spent years upon years of internal fighting; disrupting any chance of expanding their trade and increasing their strength to be a profitable nation. Instead the Civil War could have turned into multiple civil wars, weakening the states resources to the point of becoming a target for foreign countries to attack. Would we even be a Superpower today?

Even today with the problems we are facing, there are faint whispers of state secession in the wind. I believe the Union should always remain intact. However; the powers the federal government currentlly holds should be scaled back and limited, and the state’s powers should be restored to their full capacity. Also, if the federal government fails to do its job in protecting the states from invasion (i.e. Arizona), then the states should have the right to protect themselves without federal naysaying.
Neal C White says:

May 4, 2010 at 12:13 pm

Excellent comments by all on Federalist No 5. I cannot help but think that we are today experiencing a continuation of the argument that prompted Jay to write this piece. It seems to me that there is an effort to divide our country. It is amazing the number of so called pundits have written articles criticizing Arizona for the realistic passage of legislation suggesting that they wished to see the law upheld in their state. None of those who are protesting had any suggesting how to deal with the very real problems of murder, drugs, destroying of personal and public property to say nothing of the heavy burden of economic support demanded by the Illegal Immigrants.

If this attitude continues we will see division of our great country in different groups just as Jay is warning us about – and for many of the same reasons he mentioned. Why do we, the citizens, allow this to happen. The vast majority of us are in agreement with Arizona and believe the rest of the Union should support similar action. We are headed for a very bad ending if something is not done to change this attitude and direction that America is now following.
Chuck Plano, Tx says:

May 4, 2010 at 12:40 pm

The whole problem we have today is the Federal Government with the aid of the Courts exceding the Enumerated Power it was granted under the constitution. If the government operated today as was intended under the original intent of the Constitution the Federal Government would not be involved in 90% of the issues they are involved in today. Just look @ the move today to revise the Clean Water Act to read “all” water instead of just the navigatable waters. With this change the Federal Government will have control of any water in the United States including Playa Lakes. Is this what the Founders intended.
Susan H. says:

May 4, 2010 at 2:28 pm

No Chuck, I don’t believe this is what the Founders intended. We the People have the power to make a change at the ballot box. The critical question is will the “vast silent majority” get of “our collective duffs” and do something about it. I think websites such as this one and other venues promoting basic civics education may be the key.
David Hathaway says:

May 4, 2010 at 2:48 pm

Today’s Federalist Paper references the earlier letter from Queen Anne. An editorial I read today referenced even earlier the Magna Carta. Clearly, our Founders were men of letters who understood the precedents of their age. I surely wish our leaders today were as well versed. I would be pleasurably shocked to learn that any of our Congress were reading along with us.

I live in Texas. We are proud of our state, and our superior policy and good management. We are fiercely jealous of our state’s power and push back on the Federal Government’s imposition of policies and costs. In the context of today’s reading, if we were still a Confederacy, it is not hard to imagine that the current AZ brouhaha would lead us to side with her, against the neglectful central government. Heck, we do already!

Likewise, can’t you imagine Michigan or other economically challenged states looking enviously at Texas? It would be a war waiting to happen.

I found it interesting that Jay touted the strength of the Northern Hive against that of the southern states. Remember, he was writing to encourage New Yorkers to ratify the Constitution. Isn’t saying “we are more powerful than those lazy southerners” more of an argument against the Constitution? If this were today, and the writer was a Texan, I bet there would be many voices that said, “what do we need New York for?”
Andy Sparks says:

May 4, 2010 at 3:07 pm

Excellent comments and observations, especially Brad and Carolyn. I sometimes hear people say the nation would be better under the Articles of Confederation because the states were independently sovereign. However, they don’t seem to realize the internecine conflicts between borders and commerce that would arise if this were the case. Jay and the other Federalists saw first hand what path a loose confederation of nation states were headed. Eventually, even the United States under the Constitution could not hold the union together without a bloody war.

Brad, I believe Jay thought that a 25 year moratorium on use of the Mississippi was reasonable at the time. The territories to the west of the Appalachians were still fairly sparse and perhaps he felt getting Spanish agreement in writing that the river would eventually revert to the U.S. was more important than instant gratification. Also, I don’t think he realized the deep resentment the southern states and western territories had for his negotitations until after the treaty was vilified and eventually not ratified. I think it speaks well to him that he realized the mistake that was almost made and changed his line of thinking regarding it.
Melanie says:

May 4, 2010 at 4:31 pm

To Brad Tepper, I am equally confused about John Jay’s apparent 180 on the virtue of states’ sovereignty verses a strong federal government. I look forward to others’ comments on this.
Ron Meier says:

May 4, 2010 at 5:18 pm

@ Carolyn. Re the Civil War. Would there even have been a Civil War if a Confederation had continued, with the slave states being soverign? Possibly not, but there might have been other wars between the various Confederacies. We just don’t know, because that’s not the path we chose.
We can look at current day Europe for an example of what might have been. Effectively, the EU is a confederation. Look at the problems that are occuring right now with the Greece situation. We can see the very things the writers of the Federalist were warning us against coming to pass in the EU. The other members of the EU confederation are becoming self centered now that they may have to rescue member Greece. They are asking why should they have to pony up money to rescue their member which has not been fiscally responsible. It will be instructive to see how that one plays out over the next months and years.
Melanie says:

May 4, 2010 at 6:27 pm

Today in The American Thinker is an article entitled “Declaration of Independence As Law”,
written by Ronald R. Cherry. It begins “Our American Declaration of Independence is the supreme, unamendable lawof the United States. Declarational law preceded and trumps our supreme, amendable secular law, the Constitution. As stated in our Declaration, the purpose of secular law (Constitution) is to secure our sacred, unalienable, equal, individual rights to life, liberty, and the pursuit of happiness–i.e., private property honestly earned through creative labor : ‘That to secure these rights, Governments [constitutions] are instituted among Men…’ While our Constitution and Bill or Rights are the greatest secular laws ever written, it must be acknowledged that our secular Constitution has a sacred mandate–the Declaration of Independence.

It’s well worth reading the entire article, the premise is sound.
Carolyn Attaway says:

May 4, 2010 at 6:37 pm

@Ron, I think a civil war would have ensued eventually; just like today we do not like to see other people in other countries being mistreated or enslaved, the people of the North would have began to challenge the morality of slavery. It would still have been an issue.

Greece is a scary situation because the unions in that country have cuddled the Greek citizens for so long. The citizens are rioting in the streets for cut backs such as getting paid for 12 months out of the year instead of 14. Can you imagine?
Joshua Foote says:

May 4, 2010 at 7:38 pm

john jay was a brilliant man who along with the other authors of the federalist papers helped to address issues that the american people felt needed to be addressed. the federalist papers however seem to address issues that hadnt even happened yet. . some of the federalist paers seem to forshadow the civil war that devistated this country. at this time the federal government was trying to force the country to become a union, and this along with issues such as slaverymay have caused the civil war in 1862
Susan H. says:

May 4, 2010 at 7:40 pm

To Ron – that is an excellent point you bring up about the EU!
Carolyn Merritt says:

May 4, 2010 at 7:59 pm

In my opinion Jay was prescient in using the example of the north being generally “the region of strength” and at some time in the future exert the power over the southern portions of the confederacies. They would not act as neighbors but as borderers, would be prey to discords, jealousies, etc. In short, we would be in exactly the situations which some nations want to see us – formidable only to each other. Was Jay talking about the future civil war?

@Ron, not only are we seeing what Jay wrote about happening in Europe, we are seeing it happening here on our own shores today. As he states in Federalist 4 . Now we were a nation that could defend ourselves, and provide ourselves with goods and not only that could now export these same goods to other countries cheaper than they could produce them. What has happened to our commerce? It has gone overseas. We no longer manufacture and export goods that are cheaper than other countries can produce. We no longer provide ourself with goods that we produce.
Tricia says:

May 4, 2010 at 8:00 pm

@ David. I agree. States wax and wane in power and if they were all independent of each other as under the Articles of Confederation, every state would have some resentment against the others for some past fight or jealousy.

Under the Constitution, the states can get along (to an extent). By being united as one entity, the separate states can still have their differences, but also work together during times of hardship, such as the Great Depression.
WeThePeople says:

May 4, 2010 at 8:02 pm

One of the extracts from the union in England states that a strong union will be able to resist any enemy. It also suggests that our union would be divided by the North and South from the very start. Hmm, it seems that the founding fathers hint about a civil war a lot…So, for the civil war, since part of the union became it’s own enemy, does that detract from our strength as a whole? I know it did at the time, but overall, was it for the best?
This paper seems to focus on the fact that it would be a burden NOT to separate ourselves from Britain. Wonder how parliment reacted to these papers.
Peter says:

May 4, 2010 at 10:45 pm

What is important to conisder is the context – remember the Federalist Papers were printed/published in New York and were, largely, about persuading New Yorkers to accept the idea of a new nation with a new system of government. Virginia was the largest colony while Pennsylvania was probably the strongest in economic terms. Without New York the country could of – and probably would have – split into a northern country and a southern country. What Jay is doing here in one of the last papers he wrote is to build the case for unity from Massachusetts to Georgia. And he does a brilliant job, in my opinion.
Constituting America says:

May 4, 2010 at 11:07 pm

A big thank you to Horace Cooper for serving as our Guest Blogger for Federalist No. 5. Excellent analysis fromHorace, and great discussion! Thank you to everyone for participating! I would like to share a few of the lines and thoughts from today’s post and blog comments that particulary resonated with me.

As many pointed out today, the Founding Fathers were visionary in their ability to look down the road and see what the future had in store for the United States. They had this ability because they were keen students of history, political philosophy, and human nature. David said it well, “Clearly, our Founders were men of letters who understood the precedents of their age.”

As Susan H. pointed out, history does repeat itself. Our founders understood that fact much better than we do today. These days we tend to believe we are immune to the cycles that every civilization has experienced throughout the ages. If our forefathers were with us today, they would certainly be able to predict our future better than we can ourselves!

Carolyn pointed out Horace’s last line, which I loved: “The very large swath of land and significant population of America potentially were the greatest strength of the nation in unity but could be its greatest weakness in disunity.” I felt that summed up Federalist #5 perfectly!

I am continuing to learn much from you all! Thank you for taking the time to share your thoughts. Please invite others to join us!

Looking forward to Federalist No. 6!

Cathy Gillespie

PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!
Seij De Leon says:

May 4, 2010 at 11:36 pm

The reasoning in Jay’s writing is solid, there wouldn’t of been any other way to make this nation powerful without unity. But it wasn’t a problem free solution, even as the states came together there was still constant internal bickering mainly between the North and South concerning slavery. Had the United States not been formed, their would have been no single power to regulate decisions concerning slavery in newly formed states and separated states could have made chaos in fighting for what they want, earlier in time than just the civil war.
Constituting America says:

May 5, 2010 at 12:00 am

Howdy from Texas. What a great conversation today. I have to tell you guys, or y’all, I am really learning from not only our guest scholars, but from you who blog. Today was a most thought provoking dialogue. I thank you for joining us and for spreading the word about our “90 in 90.” A great civic discussion, based on the founding principles of our country, is just what our country needs.

I thank Horace Cooper for his wonderful essay today. Thanks Horace!

I related to what Tricia said in her blog today regarding the fact that a union gives us the ability to disagree yet to unite in times of trouble. An analogy would be a family. Families may bicker but – watch out – because they will defend each other when one is confronted or in danger.

In relation to the founding era and Federalist No. 5, there was still so much to be imagined, discovered and resolved. There was an abundance of mystery in America. This is one of the brilliant aspects of Publius – they had such foresight, almost prophetic. They knew there were differences amongst the peoples of America, with a vast portion of America yet to be discovered and claimed, but they also new that it was better to be with each other rather than against one another; to be governed by a unified vision.

As our two hundred thirty -four years have evolved, it has become apparent that our differences did drive stakes into our passions but they did not dismember us. If we had not found stability as a burgeoning union then we would never have been able to survive the challenges that were to be wrought by the civil war and the great depression.. to name a few.

So what is the relevancy of Federalist No. 5 today? It is in defining the boundaries between the federal government and the states in the twenty first century. It is in the understanding of how much power our founding fathers really intended the federal government to have. It is in the reckoning and reconciling of the autonomy the states were intended to have and should have today. The answers to these questions are complex, especially because it is inordinately hard to rein back leniencies that have already been dispersed. Once one foot is in the door, it is very hard to close it again. Has the federal government planted its boots upon our thresholds too boldly?

I dare say many of us would answer yes. I dare say many of us agree with Arizona in regard to the fact that she has the right to make her own laws, yet look at how her autonomy is disrupting the union. Is this not exactly what Publius was predicting? However, today, is the fault with the state or with the Federal government who failed to protect her and her people? Or is it the state’s right to defend herself? Is this not addressed in the Constitution in Article I Section 8.16? I, personally, would like to hear some thoughts from our scholars as to what exactly Article 1 Section 8.16 means in relation to Arizona.

It is only in the educating of America about the United States Constitution that these questions may be answered. Knowledge is power. We cannot appreciate what has been taken away if we have never known what was rightfully ours in the first place.

The monarchies of Europe didn’t want their “people” educated. An educated people meant that they would be able to see the truths. These truths are self-evident: If we don’t utilize our educated voice someone else will speak for us. And all of our rights will be lost.

God bless,

Janine Turner
5.4.10
Kellie says:

May 6, 2010 at 8:04 am

The conflict in AZ today really brings home this issue of unity and states’ rights which is so important to understand if we are to protect our country. The federal government needs to get back to playing the role of protecting the states by enforcing the federal laws already put in place. By turning their back on AZ, they are essentially advocating the disunity. I never really understood how important it was to give the states rights to govern their citizens, yet have the federal government to protect and govern the states. I think the only hope is that people of America and especially AZ understand these concepts and educate each other on the consequences of disunity, and they not let our federal government forget the original principles as discussed in these papers.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 5, 2010 – Federalist No. 6 – Cathy Gillespie

Federalist Paper 06, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 06, Federalist No. 06

Wednesday, May 5th, 2010

Hi everyone – thank you to Professor Allen for your enlightening essay! And thank you to everyone for your comments today.

I love the realism of Alexander Hamilton: “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.”

We are fortunate our founding fathers were well read students of history, philosophy and political systems. They understood that we, as humans, are imperfect, and that civilizations through the ages have fallen victim to the character flaws of their leaders and citizens, time and time again. The Constitution they proposed, with its delicate checks and balances, was designed to take man’s nature into account.

My favorite line from this essay was “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?”

Over 200 years later, we, and the rest of the world, are still “remote from the happy empire of perfect wisdom and perfect virtue”-a state humans will most likely never attain. As we consider how we deal with Iran and other terrorist nations, we should remember Alexander Hamilton’s words, and not assume we can simply talk things out. These nations have not had the benefit of freedom. Oppression breads violence, and reinforces man’s darker side.

The United States of America, though, is one of the greatest humanitarian and charitable nations on the planet. How is that possible, given the nature of man as described by Hamilton? Our founders – we the people – designed a government based on Godly principles, ceding only enough power to the government to keep man’s darker side in check, but allowing the freedom necessary for our better qualities to flourish, and be brought to bear upon the problems facing our Nation and the world.

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 5, 2010 – Federalist No. 6 – Janine Turner

Federalist Paper 06, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 06, Federalist No. 06

Wednesday, May 5th, 2010

Howdy from Texas! I thank y’all for joining us! Federalist No. 6 is yet another fascinating reading. Yes? I want to thank our Constitutional scholar, W.B. Allen, for breaking down Federalist Paper No. 6 with such superb detail.
Thanks Mr. Allen!

The complexity of this particular paper is mesmerizing.
I am enthralled by the examples of former empires, the rise and fall of these republics, and the reasons why. The relevancies in today’s reading are many but the warnings are simple and the question singular. How to we keep the United States of America from failing? The warnings from history provide wisdom. The republics of Sparta, Athens, Rome and Carthage were ruined by wars and greed, Holland was overwhelmed in debt and taxes and England and France were beleaguered by antipathy toward one another.

It is interesting to reflect upon the fact that one of the reasons Alexander Hamilton, John Jay and James Madison could make such brilliant observations is because of their superb education. Alexander Hamilton should be an inspiration to many who believe that one has to be born into wealth to receive such an education. I wrote about Alexander Hamilton’s mother in my book, “Holding Her Head High.” Alexander was raised by his single mother, who by example, taught him at an early age the art of business and the spirit of tenacity. Yet, he was very poor. When his mother died he was in desperate need of a new pair of shoes. He may have had no shoes but he had spirit, determination and true grit.

Are these not qualities that Americans hold “Near and Dear” – spirit, determination and true grit. These American characteristics were why we won the Revolutionary war and these are the qualities that keep America great today. We are a country, a republic, where one may dare to dream. We are a country where, according to our Constitution, no one may receive titles of Nobility. We are a country where a boy born in a single room log cabin becomes President, where men raised by single mother’s become President, to name a few examples. We are a country where vision, perseverance and willingness to work hard can nurture the seeds of talent, in any man or woman, to fruition. In this respect we are all equal. In this respect we must hold “Near and Dear” our free enterprise, which yields the vast fruits of commerce, industry and personal ingenuity keeping America vibrant, solvent and safe.

God Bless,

Janine Turner
5.5.10

P.S. If you want to blog about this piece please do so on the main blog on our guest scholar of today’s essay. We want to keep all comments there to promote a better flow of conversation. ☺

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 5, 2010 – Federalist No. 6 – Concerning Dangers from Dissensions Between the States, for the Indpendent Journal (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University

Federalist Paper 06, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 05, Federalist No. 06, W. B. Allen PhD

Wednesday, May 5th, 2010

Federalist #6

Essay number five closed with recognition that what is decisive in human communities is the political distinction, the political identity. That settles the question of what is “near and dear.” That distinction lies at the root of warfare. It follows accordingly that one lessens the chance of war by setting thins up so that people will call the same things “near and dear.” This means, at a minimum of course, that when people seek to resolve their most important questions they will all expect the authoritative answer to come from the same source. They will all appeal to the same Solomon.

None of this means that Publius envisions a human landscape from which all war has been eliminated. He described controlling war within the precise political environment of the United States by means of constructing a political identity for these people called Americans. This is made clear in essay number six, in which Publius speaks explicitly against utopian speculation.

Men, he argues, are ambitious, vindictive, and rapacious. They are so because they differ regarding the things that are near and dear to them. One reacts to those things which are not one’s own more under the influence of those passions of ambition, vindictiveness, or rapaciousness than with in respect to what is one’s own. The founding seeks to insulate this characteristic in human beings by teaching some set of human beings to hold the same things “near and dear.”

Note, too, that the statement about human character does not add the familiar phrase, “by nature.” It is not necessary to conclude that human nature is evil in order to see that certain evil (fallenness) is attached to human nature. There is another view that human nature itself is evil, that is sometimes falsely attributed to Publius. This very negative portrait of constitutionalism makes it appear that the whole purpose of the constitution is to prevent Americans from doing all the evil they can to one another.

The first essays in The Federalist Papers convey exactly the opposite picture: it is admitted that evil is possible; it is admitted that government is necessary; it is admitted that people do violence; it is admitted that there are causes of war rooted in human nature; but there is still the positive endeavor, which is the real driving force of this founding, and that is the endeavor to build a nation of one people who call the same things near and dear.

This emerges clearly in the third paragraph of essay number six:

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 intirely [sic] in private passions: in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members.

These separate categories that Publius has listed all relate to one another, but the most important thing about them is that they are distinct, separate. The love of power, to take an example, is different from the private passions. The rivalries and competitions of commerce also differ from private passions. In a manner of speaking, these factors may not be passions at all, they may be perfectly rational. If by passions, we mean what is not rational, then we cannot call all these things “passions.” That means that the causes of war are not necessarily irrational.

To imagine that wars come about only because of failures of reason is probably one of the greatest mistakes. Some wars are thoroughly rational. Above all, ina case wehre people palce themselves ina situation to invite war. Let’s remember essays three and four: “the nation must place itself in such a situation that it will not invite war.” It will invite friendly intercourse, not war; which is why prosperity is a precondition for peace rather than a consequence of peace.

Having made that distinction, and having distinguished the private passions from other conceivable causes of war, we now note that the private passions are not less interesting because they are arational. For they bear upon the question of public opinion, and the preceding discussion turns almost entirely upon the question of public opinion.

In paragraph seven of essay six Publius again discussed the general clauses and examples of wars, now focused on the United States. He remarked that great national events sometimes are produced by petty personal matters, and he described Daniel Shays of Massachusetts as a desperate debtor. Then he added that it is much to be doubted whether there had bee a rebellion had Shays not been a desperate debtor. Thus, Publius wonders out loud whether the brief civil war was caused because a desperate person was carried away or because a person of enormous capacity for leadership was desperate. Accordingly, private passion must be taken into account no less than rational opportunities. If Shays with his talent had not been made desperate, he had not organized thousands of debtors and farmers.

In the next two paragraph Publius set up a measure of the distance what he called visionary or designing men, on the hand, and the hardheaded realists of political life on the other hand:

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 humours which have so often kindled into wars. Commercial republics, like ours, will never e 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.

What a lovely, visionary portrait of the modern dispensation! But Publius rejects it, no matter how close it comes to the view that prosperity is a precondition for peace. Publius says that it is not enough to form a republic and to practice commerce. In fact, he responds to both issues, when he wonders whether “it is not the true interest of all nations, whether republics or not, to cultivate the same benevolent and philosophic spirit.” Commerce may well soften manners, but it equally well provides new occasions for jealousies, new occasions for conflict. In short, Publius rejects the new and modern principles of the enlightenment, that greater human understanding will eliminate causes for war.

Publius’s argument is particular to the political organization of the untied States. Our discussion emerged from considering domestic violence. Publius examined commerce among the states, but noted that the commerce would not disappear because of Union. The only difference is a difference in practice or habitude. The various states (New York, New Jersey, Connecticut, say) would experience the same necessities. But under the Union they would all turn to the same source for help when problems arise. They would call the same thing near and dear by turning to a single Solomon. IT is the act of agreeing upon a single Solomon that predisposes men to be more peaceful with one another, more like brothers than enemies.

W. B. Allen

Dean and Professor of Emeritus

Michigan State University

27 Responses to “May 5, 2010 – Federalist No. 6 – Concerning Dangers from Dissensions Between the States, for the Indpendent Journal (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University”

Maggie says:

May 5, 2010 at 8:31 am

I found it very striking that he brought up the jealousies that can and will occur between states due to successes. Is this not what is happening today with our jealousy of corporate America? We want the fruit of other’s successes.

I was also moved by this paper because, to me, it seems to reflect upon the current unrest and calls for dissension by a few states. We look to each other (as states) and want what others have or don’t worry about other’s problems because we don’t see them as our own. Hamilton knew so many years ago that this could be an issue.
Susan Craig says:

May 5, 2010 at 8:56 am

The first five papers argue for the primary reason for government defense of the people. Now in six it is posited that the next reason for a national government arbitration between the sovereign states to peaceably resolve differences. They do not start from the belief that man is inherently good, argue from the knowledge that man is inherently flawed and sinful and will often act from any of the seven deadly sins (greed, lust, etc.)
Bache says:

May 5, 2010 at 10:08 am

B. Franklin once said, “They who would give up an essential liberty for temporary security, deserve neither liberty or security.” I believe the life of every American citizen and or state was and is impacted by the whole, ie. one nation. Relinquishing a liberty for the short term forsakes longterm security. “We must indeed all hang together or most assuredly, we shall hang separately.” This famous quotation by Benjamin Franklin is a principle our Founding Fathers agreed to not only as a nation but personally by pledging their fortunes, families, and honor. Who today would be willing to take such an oath as this?
trish says:

May 5, 2010 at 10:35 am

Susan I really like how you brought a central theme for the first 5 papers. Good thought!
Kay says:

May 5, 2010 at 11:30 am

Hamilton’s sentences are long and more involved than John Jay’s, and take more concentration on my part. The essays and commentaries on each Paper condenses the information, bringing out the highlights. I am so enjoying this series.
Samantha Curtis says:

May 5, 2010 at 12:01 pm

None of this means that Publius envisions a human landscape from which all war has been eliminated. He described controlling war within the precise political environment of the United States by means of constructing a political identity for these people called Americans.

— So he is saying that America is not prefect that we are always going to have wars. But we need to control the war in a political way?
Carolyn Attaway says:

May 5, 2010 at 12:37 pm

After reading Alexander Hamilton on #6, I realize how much I miss John Jay’s writings. John Jay was very concise, whereas I find Hamilton’s words very flowery. It reminds me of when Abigail Adams told her husband “John, people know you are highly educated, you don’t have to remind them in your speeches.” I guess I am going to be an unhappy camper for awhile

That being said, there were 2 phrases that jumped out at me: “A man must be far gone in Utopian speculations who can seriously doubt that,” and “There have been, if I may so express it, almost as many popular as royal wars”.

One definition of Utopian is an ardent but impractical political or social reformer; visionary; idealist. I believe we are experiencing this mindset today regarding our national security. Many believe we only need to discuss our differences with those that oppose us and we can solve all our problems. This is unrealistic for many reasons, and as Hamilton explains, this logic forgets that some men are ambitious, vindictive and rapacious for no other reason than human nature. Hamilton realizes that most people strive for a Utopia, but he writes that because of the many causes of hostility between nations, this place is seldom, if ever found.

The second phrase regarding popular versus royal wars, reminded me of when the majority of Americans supported the IRAQ war, when their passions ran high and demanded action for the horrendous crime committed on our soil. The outcome of this war has split our Nation after several years because of many reasons, and now many question why we entered the war in the first place.

@Bache Today, only about 50% of the American population if you take in consideration that about 47% now receive some form of government entitlement.
Susan says:

May 5, 2010 at 1:50 pm

@Carolyn, I so totally agree with you on the styles of the two writers. Hamilton requires my complete attention. That being said, I am so impressed with how the Founding Fathers have anticipated all these problems in the future.
Roger Jett says:

May 5, 2010 at 2:05 pm

The Federalist Papers , as other commenters have pointed out, were directed toward a New York readership in hopes of bringing them into the camp that was arguing for a strong national government. Hamilton in particular wrote from a point of view that didn’t play as well in other parts of the country. This I think was particularly true of Paper #6 as some perception has been (both past and present) that he trivalized and mocked the plight of a very large portion of the citizenry when he labeled their protests as disturbances, revolts and rebellions. These people who had been made destitute by the war and by subsequent economic depressions, felt severely oppressed by their government. Those in position of power demanded payment of obligations in gold or silver. Many soldiers, farmers and other contributors to the war effort found themselves after the war undercompensated or even unpaid entirely for their sacrifices. The continental notes at that point in time were devalued to the point that they were widely considered of little or no value. The courts confiscated property to settle debts and many found themselves in debtor’s prison. A few protestors found themselves hung for treason! In this paper Hamilton mentions situations in three of the states ….North Carolina, Pennsylvania and Massachuetts. In his commentary Professor Allen identifies for us Shay’s Rebellion as the Masssachuetts’ incidence. I believe the disturbance in Pennsylvania that Hamilton alludes to would be the “Fries Rebellion” which is were the people were being assessed taxes for the number of windows they had in their homes (this was way before they had tanning beds). I presume, but may be doing so wrongly that the reference to North Carolina was referring to the establishment of the temporary and unrecognized State of Franklin which was located at what is today eastern Tennessee, but which was at that time considered a part of western North Carolina. The Federalist Party took political hits from their opponents due to the perception they were often against the common people in these various events and others. In saying all of this, I have no intentions of taking away or minimizing the enormous contribution that Hamilton made in leading our country to a magnificient republic with a constitution that is enequaled and has long endured the test of time. Hamilton is certainly deserving of the great honor bestowed upon him as a ” Founding Father.”
Andy Sparks says:

May 5, 2010 at 3:04 pm

Hamilton speaks directly to the weakness of the federal government under the Articles of Confederation in this essay: “Let the point of extreme depression to which our national dignity and credit have sunk,…from a lax and ill administration of government.” The loose confederation under the AOC is causing the new found freedom established by the Declaration of Independence to be threatened both without and within. Only under a new government such as proposed by the as yet ratified Constitution can prevent the discord among the states (such as Shay’s Rebellion) from ruination.
Laurie says:

May 5, 2010 at 3:22 pm

I too need assistance with Hamilton’s writings, so I want to thank professor Allen for his helpful comments. I was struck by his use of what is “near and dear” to us as a nation, our political identity, what truly holds us together as Americans. That identity has been under such terrible attack by so many for so long, that it has undermined our unity as a people. Now we are being pushed into groups, not so much warring states, except for Arizona, but isn’t that really a group identity issue, too. It is not the states at war so much as the political groups we are being made to identify with and to feel are more important than anything else. Aren’t people thinking of their political identity with their group, rather than with America as a whole? Aren’t we being set up here with the shift to think of what is “near and dear” to our group, rather than to our country?
Constituting America says:

May 5, 2010 at 3:32 pm

Howdy from Texas! I thank y’all for joining us! Federalist No. 6 is yet another fascinating reading. Yes? I want to thank our Constitutional scholar, W.B. Allen, for breaking down Federalist Paper No. 6 with such superb detail.
Thanks Mr. Allen!

The complexity of this particular paper is mesmerizing.
I am enthralled by the examples of former empires, the rise and fall of these republics, and the reasons why. The relevancies in today’s reading are many but the warnings are simple and the question singular. How to we keep the United States of America from failing? The warnings from history provide wisdom. The republics of Sparta, Athens, Rome and Carthage were ruined by wars and greed, Holland was overwhelmed in debt and taxes and England and France were beleaguered by antipathy toward one another.

It is interesting to reflect upon the fact that one of the reasons Alexander Hamilton, John Jay and James Madison could make such brilliant observations is because of their superb education. Alexander Hamilton should be an inspiration to many who believe that one has to be born into wealth to receive such an education. I wrote about Alexander Hamilton’s mother in my book, “Holding Her Head High.” Alexander was raised by his single mother, who by example, taught him at an early age the art of business and the spirit of tenacity. Yet, he was very poor. When his mother died he was in desperate need of a new pair of shoes. He may have had no shoes but he had spirit, determination and true grit.

Are these not qualities that Americans hold “Near and Dear” – spirit, determination and true grit. These American characteristics were why we won the Revolutionary war and these are the qualities that keep America great today. We are a country, a republic, where one may dare to dream. We are a country where, according to our Constitution, no one may receive titles of Nobility. We are a country where a boy born in a single room log cabin becomes President, where men raised by single mother’s become President, to name a few examples. We are a country where vision, perseverance and willingness to work hard can nurture the seeds of talent, in any man or woman, to fruition. In this respect we are all equal. In this respect we must hold “Near and Dear” our free enterprise, which yields the vast fruits of commerce, industry and personal ingenuity keeping America vibrant, solvent and safe.

God Bless,

Janine Turner
5.5.10
Maggie says:

May 5, 2010 at 3:39 pm

@ Carolyn…….You have a way of putting into words exactly what I am thinking after reading these papers. I can’t thank you enough for your contributions here.

Laurie stated “Aren’t people thinking of their political identity with their group, rather than with America as a whole?”……and I couldn’t agree more. We need to stop thinking about issues on a “Right” or “Left” (or Republican vs Democrat) basis and get back to doing what is right for America.
David Hathaway says:

May 5, 2010 at 4:21 pm

I personally enjoy Hamilton’s writing style. He uses difficult but valuable words that an earlier reader would have understood quicker than us. I am reminded of the difference between Spanish and English. Spanish tends to use more, easier, words while English uses longer, meatier words. The net result is that Romance language writings take more space. Just imagine how long this Paper would have been if Jay had written it!

I find it interesting that Hamilton invokes Shay’s Rebellion. Again, I find it timely. DESPERATE DEBTOR Daniel Shay was largely desperate and in debt because his government had levied such high taxes. Massachusetts levied high taxes to pay off their war debt. So crushing was the tax burden that citizens insurrected against their own government!

The experience was fresh in Hamilton’s mind as he became the first Secretary of the Treasury. It spurred him to address the National debt (not independent State debts), ultimately forming the First Bank of the United States.

I think the rebellion is timely, because our present government is likewise saddling us with debt. How long will it be before we are inflicted with crushing tax rates? How long will it be before Tea Parties become Shay’s Rebellions? Well, at least to the mainstream media!

I mentioned before the biography of Alexander Hamilton by Andrew Chernow. It’s very readable, as you’d want while straining the Federalist Paper soup. If you read the few chapters on Hamilton circa the post-Revolution and pre-Constitution, you might have even more insights.
Carolyn Attaway says:

May 5, 2010 at 4:23 pm

@ Maggie . . . Thank you so much for your kind words. I, too, enjoy everyone’s contributions to this site. I have learned so much already!
Chuck Plano, Tx says:

May 5, 2010 at 4:28 pm

I totally agree with getting back to doing what is right for America but remember we must think in terms of the Enumerated Powers of the Federal Government and not what has become today a total Federal System that has usurped the power of the States and the People.
ERL says:

May 5, 2010 at 6:52 pm

After completion of the Federalist (and possibly Joseph Story’s Commentaries on the Constitution), I would recommend reading a biography of Alexander Hamilton. He had one of the most fascinating careers in American Politics. Unfortunately, he has been cast as the “villian” of the Founding Fathers, but our political, economic, and governmental system is more in line with his vision than that of Thomas Jefferson and James Madison.

Hamilton wrote the Federalist Papers with little editing, making the finished product all the more impressive. (When he grew tired of writing, his wife recorded his dictation). He was also instrumental in creating the initial cabinet departments (he was the first Secretary of the Treasury), and in establishing the Presidency as a powerful policy-making branch of government, rather than simply an adminsitrator for Congress. Evidently, Jefferson and Madison envisioned a British-style Parliamentary system, where the leader of Congress would also be the leader (i.e., Prime Minster) of the US Government.

Alexander Hamilton is probably the most misunderstood of our Founding Fathers.
Ron Meier says:

May 5, 2010 at 7:21 pm

Two phrases struck me in Prof. Allen’s post. First, “prosperity is a precondition for peace rather than a consequence of peace.” Second, “IT is the act of agreeing upon a single Solomon that predisposes men to be more peaceful with one another, more like brothers than enemies.”

As I mentioned a couple days ago, with respect to the first phrase, conflict is normal & peace is abnormal. Where properity doesn’t exist in the world, nations are run by dictators and seem to be in a state of constant civil war. Increasing prosperity does seem to have helped us avoid civil war for the past 150 years. Now, though, it seems that some of our countrymen are setting up prosperity as a straw man to be attacked and vilified and drawn and quartered in the name of peace through equal outcomes. Instead we should praise God for the prosperity that has enabled us to be the most generous nation on the face of the earth and the nation that other nations call upon to bring them peace.

As to the second phrase, I wonder, what is the SINGLE SOLOMON upon which we might all, left and right, agree upon today that might nullify the internal conflict that is beginning to tear us apart? Troops in combat have that single Solomon, which is that they shed their blood and endure personal hardships for their comrades; that makes them a Band of Brothers. We don’t seem to have that single thing that makes all Americans feel like a Band of Brothers; we don’t endure much hardship together and we certainly don’t have each other’s backs to watch out for. Remember Curly from City Slickers who said the secret to life is ONE THING; Mitch asked what the one thing was and Curly’s response was “that’s what you’ve got to figure out.” We’ve got to figure out what our one thing is. While we might all agree on the qualities that Janine mentioned as those American hold near and dear, they appear important, but not sufficient, today to be our single Solomon. It seems that we, collectively, need to agree upon that before we can overcome our current internal conflicts. Anyone have any ideas on that Single Solomon? Or, as Curly might say, that one thing?
Andy Sparks says:

May 5, 2010 at 7:48 pm

David, Hamilton addressd both the national AND the state debt. His assumption plan incorporated all the individual state debts with the national debt. The federal government would assume all the debt and pay off the interest only at a guaranteed rate. This would establish good credit with the rest of the world and insure that the wealthiest classes of America would be heavily vested in the success of the United States federal government: a very shrewd plan that worked wonders at putting the new nation on solid financial ground.

But you are right about early hints at his eventual policy in Federalist #6. I think he was saying that if the debt crises created by individual states financially at odds with one another were replaced by a government that did something like assume all of their debt, perhaps Shays would not have had a reason to rebel.
Roger Jett says:

May 5, 2010 at 7:52 pm

Would like to make a correction to a tidbit in my earlier post this afternoon. I had speculated that Hamilton was referring to the “Fries Rebellion” when he alluded to a late menacing disburbance in Pennsylvania. Well that was wrong since this rebellion took place about twelve years after the ” Federalist Papers” were written. It’s a small matter, but does anyone know what event Hamilton was referring to ? My initial thought had been the “Whiskey Rebellion” of western Pennsylvania, but that took place later also.
Andy Sparks says:

May 5, 2010 at 8:36 pm

Roger, Hamilton was referring to an incident in the Wyoming region of Pennsylvania where a group of people were trying to separate with other local regions to form their own state. It was serious enough that the Pennsylvania legislature resolved to call out the militia if things had gotten worse. See the minutes of the the legislature below:

http://www.archive.org/stream/minutesofgeneral178790penn#page/n11/mode/2up
WeThePeople says:

May 5, 2010 at 9:11 pm

Bringing up previous regions and unions that have experienced internal conflict… What is it with the federalist papers authors and the idea of an imminent civil war? This subject was touched upon in all of the federalist papers so far, and it was mentioned in the Constitution. It’s like they are psychic or something… just kidding, but I do find it strange.
Roger Jett, if your previous assumptions about the rebellion were wrong, which one is it referring to? Any further insights?
Jim Sykes says:

May 5, 2010 at 10:39 pm

In response to Ron Meier. There is no “one thing” for all individuals and that is what I believe Curly was trying to tell Mitch. The reference to Solomon to me refers to the Solomon of the Bible. To answer Ron’s question about “my one thing” is my belief in God and His power to heal our nation if we will simply pray for Him to do so. I ask each person who reads this to do exactly that tomorrow at your local meeting to observe our National Day of Prayer. A special thank you to Janine and Cathy and may God bless you all for participating here and for trying to return our great nation to it’s rightful place as our Creator intended.
Ron Meier says:

May 5, 2010 at 11:10 pm

That may be the “one thing” we’re lacking as a nation, Jim. “One nation, Under God.” It is being undermined every day.
Constituting America says:

May 5, 2010 at 11:53 pm

Hi everyone – thank you to Professor Allen for your enlightening essay! And thank you to everyone for your comments today.

I love the realism of Alexander Hamilton: “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.”

We are fortunate our founding fathers were well read students of history, philosophy and political systems. They understood that we, as humans, are imperfect, and that civilizations through the ages have fallen victim to the character flaws of their leaders and citizens, time and time again. The Constitution they proposed, with its delicate checks and balances, was designed to take man’s nature into account.

My favorite line from this essay was “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?”

Over 200 years later, we, and the rest of the world, are still “remote from the happy empire of perfect wisdom and perfect virtue”-a state humans will most likely never attain. As we consider how we deal with Iran and other terrorist nations, we should remember Alexander Hamilton’s words, and not assume we can simply talk things out. These nations have not had the benefit of freedom. Oppression breads violence, and reinforces man’s darker side.

The United States of America, though, is one of the greatest humanitarian and charitable nations on the planet. How is that possible, given the nature of man as described by Hamilton? Our founders – we the people – designed a government based on Godly principles, ceding only enough power to the government to keep man’s darker side in check, but allowing the freedom necessary for our better qualities to flourish, and be brought to bear upon the problems facing our Nation and the world.

Cathy Gillespie

PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!
Jesse Stewart says:

May 6, 2010 at 2:23 pm

Many of you have commented in a similar way to mine today. My initial reaction to this paper was that Hamilton’s argument made sense, but upon reflection realized that even the holding the same “near and dear” can’t always keep the states together – we had a Civil War after all! From disagreements over land in the early days of our nation to today when states and other governmental entities are fighting Arizona over its own state law and states taking sides on the constitutionality of health care reform, we will never get rid of the personal and “momentary passions” that afflict man.

We’ve come through disagreements before and united in times of crisis – I hope we will do so this time!
Tim Shey says:

July 20, 2010 at 2:31 pm

The nature of life is antagonism. Life is war; war is life. Why? Because of our fallen nature. As long as there is Christ and Satan at work in human endeavor, there will always be conflict. Alexander Hamilton knew this. We need limited government to protect the innocent and powerless from those that would abuse their power.

As a Christian, my life is governed by the Lord. If I abide in Christ (or if I am strong in Christ), then it is very hard for Satan to tempt me or influence me. If I am an unbeliever or weak in Christ, it is much easier for Satan to disrupt my life.

If a nation is morally weak, this invites attack from other nations. The Marxist remedy is to concentrate on education (liberal propaganda) and redistribution of wealth and a mega government that solves all of our problems and everything will be fine and dandy because there is no such thing as Original Sin. The Christian remedy is to repent of our sin, seek God and the Lord will heal our land–and then the Lord will raise up righteous men to govern the nation.

When the Israelites were in sin, they wanted a king to govern them just like the nations around them. But this is being conformed to the world. Mosaic Law and to be ruled by the judges were what the Lord wanted for the Israelites. But sin breeds more selfishness and more blindness, and so they wanted a worldly king (King Saul). The Lord told Samuel that Israel did not reject Samuel, but they had rejected the Lord and the Lord’s plan for their lives. King Saul ended up being one of the worst kings in the history of Israel.

This Obama Administration is another King Saul. If the United States turns back to God, the Lord will raise up another King David, so that we can get rid of demonic strongholds in high places.

Obeying the Lord is internal government; the U.S. Constitution is external government. The internal must come first before the external can be effective.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 6, 2010 – Federalist No. 7 – Janine Turner

Federalist Paper 07, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 07, Federalist No. 07

Thursday, May 6th, 2010

Howdy from Texas. I thank you for joining us today! I, also thank Professor W.B. Allen for his essay. As I was reading his essay today I realized how grateful I am that he has graced us with his wisdom and that he, and our other guest scholars, have so deftly interpreted the meaning of the Federalist Papers. Isn’t it wonderful?

I hope you are checking out the Daily Behind the Scenes Videos that I am filming, editing and uploading every night! They are on the website – it’s the box on top of the “90 in 90 = 180” box – the top, center of the home page. I am wearing a red dress. I am really enjoying filming this every night and writing the daily essays, but I am getting no sleep!!!

Cathy, my co-chair, has written such inspirational essays. Thanks Cathy. You are a true American Patriot – as are all of you who are joining us! Please spread the word about our “90 in 90” and our “We the People 9.17 Contest” for kids!!

Today’s reading continues to focus on union and the danger we would face from Europe if we did not unite.

Strength in numbers and unity through diversity is a true American-ism.

One of the greatest miracles is that America won the Revolutionary War, but also, and no less importantly, that America survived her infancy and was directed by brilliant forefathers who were touched by Divine Providence. The United States Constitution was a miracle as well.

There are a couple of Alexander Hamilton’s phrases that caught my attention today:

The spirit of enterprise which characterizes the commercial part of America, has left no occasion of displaying itself unimproved.

“The spirit of enterprise..” this is the heart and soul of Americans. We were hard working survivors with an independent streak that gave us the courage to cross the oceans to live in an inconceivable wildernesses and the adventurousness to cross the plains in covered wagons to endure an untamed land. Americans were of a fearless stock driven by an unbridled spirit.

And we still are.

This is why Samuel Adam’s words still ring true to the American soul – a soul that was built upon generations of mavericks:

The redistributing of wealth and pooling of property are despotic and unconstitutional.

Americans thrive on the spirit of free enterprise and the freedom to pursue it.

The government must not cripple America’s genius.

God Bless,

Janine Turner

5.6.10

P.S. If you would like to respond to this essay please go back to the guest scholar of the day’s blog. We may converse together as one there…

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 6, 2010 – Federalist No. 7 – Cathy Gillespie

Federalist Paper 07, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 07, Federalist No. 07

Thursday, May 6th, 2010

Welcome to Federalist No. 7 – 90 in 90 = 180: History Holds the Key to the Future!!!!

Are you all watching Janine’s Behind the Scenes Videos? http://gallery.me.com/janineturner62#gallery Tonight she gives a shout out to the Constitutional Scholar Guest Bloggers!

Please check these videos out for the lighter side of Constituting America! You will be glad you did!

In Federalist Paper No. 7 Alexander Hamilton explores possible causes of tension, disagreement and outright warfare between states if joined as a loose confederation instead of through the proposed U.S. Constitution.

Territorial disputes, trade disagreements, apportionment of the public debt of the
United States, “laws in violation of private contracts, as they amount to aggressions on the rights of those states whose citizens are injured by them,” and differing alliances between various states and foreign nations, are all listed as divisive factors which could prove destructive without a central arbitrating force.

The fact that even with the ratification of the United States Constitution our country could not avoid civil war, validates Hamilton’s concerns that without the Constitution, the natural tensions between states would eventually erupt. Thanks to the founders’ wisdom and vision, even with civil war, the United States Constitution lit the path for the healing and reconstruction of our Nation.

It is hard to imagine what the United States might have looked like if the Constitution were not adopted, but the founding fathers envisioned a future similar to Europe, and they knew they did not want to emulate the European countries. “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.”

Our current leaders would be wise to assess if it is any more attractive today to emulate Europe than it was over 200 years ago. As we chart the course for the next two hundred years, we must choose if we embrace the U.S. Constitution and the founding principles of our country, including “The spirit of enterprise, which characterizes the commercial part of America.” This “unbridled spirit” as Alexander Hamilton referred to it, is part of what has made the United States a great nation. Will we bridle our spirit of enterprise and drift from the Constitution and our founding principles? And what will our Nation look like in 200 years if we do? Our founding fathers could most certainly predict the outcome, and if we read these papers carefully, we can too.

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 6, 2010 – Federalist No. 7 – The Same Subject Continued: Concerning Dangers from Dissensions Between the States, for the Indpendent Journal (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University

Federalist Paper 07, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 07, W. B. Allen PhD

Thursday, May 6th, 2010

Federalist # 7

Publius in the seventh essay of The Federalist Papers focuses entirely on examples of the kinds of disputes that could, in the event of disunion, reduce the United States into a replica of the European wars that had long colored that continent.

The examples cover territorial disputes, commercial disputes, debt settlement disputes, state laws violating contractual obligations, and alliances with foreign powers. In each of these examples Publius adopts the probable reasoning of prudent statesmen, not predicating intrinsic hostilities among the states but rather arguing from the operations of interest and the resentments of injuries real or perceived.

His point is simple and clear: without a trusted judge either to settle such disputes or to obviate them altogether through uniform rules where appropriate, there would be no ready instrumentality of resolution. Sometimes the disputes would be regulated through negotiation. But at other times, as occurs elsewhere, they would eventuate in conflicts that remain unresolved save through war. Publius’s point is not that war among the states is a likely prospect, but rather that the habits of independence and self-reliance would eventuality develop into hardened positions that would not admit of easy resolution.

The arguments developed especially in essays two through six, therefore, receive their concrete political application in a consideration of the actual circumstances of the states and the effects of their contiguity. What ought to be matters of domestic difference resolved through the rule of law would become matters of international conflict, for which there is no agency or instrument of resolution apart from the contest of force. He concluded:

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 the all. Divide et impera must be the motto of every nation that either hates or fears us.

The force of the argument is immediately discernible in the eventualities o the War for the Union of the 1860s, in which not only the differences among the states produced eventual warfare, but the prospective intervention of foreign powers was seriously bruited and nearly obtained. Stated plainly, the Union was created for the sake of the rights of self-government described in Federalist one but also to grant Americans space to grow in peace.

W. B. Allen

Dean and Professor Emeritus

Michigan State University

21 Responses to “May 6, 2010 – Federalist No. 7 – The Same Subject Continued: Concerning Dangers from Dissensions Between the States, for the Indpendent Journal (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University”

Brad says:

May 6, 2010 at 8:37 am

I am still thinking about Shays “rebellion”. Quite frankly, I feel that Shays got a really bad deal. From my reading, he was a Revolutionary War veteran of much decoration having served in several theaters with distinction. He seemed to desire to return home and live out his life in peace UNTIL such time that the state of Massachusetts had other ideas. Did the elite “intellectuals” in Boston really believe they could tax and tax to death the common man to ruin? Shays pleaded for reconsideration and relief from this new oppression. What he must have been thinking to face a new taxing tyrant.
Hamilton and Jay are correct to point out the dangers leading man to revolt. In this case, though, the state of Massachusetts was able to take care of this problem on its own. Albeit in a way that I feel was disgraceful. Gov. Boudin’s actions were tyrannical. Thank goodness Hancock replaced him soon enough to restore calmer heads and unified the state. It is a fallacy to think that a greater Federal Government was needed at that time. What was needed was a smarter and more humane state government. I feel that Publius falls short in argument here. I feel that this is not a good example where a unified central government would be more productive in local affairs.
Note our current state of affairs. We the people do not need more oversight on a local level pushing its weight around.
Maggie says:

May 6, 2010 at 9:08 am

This part of Hamilton’s essay jumped out at me as I read…”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.” Truer words were never written. We battle over money and who pays more tax and who gets more benefits from those taxes EVERY DAY.
Susan Craig says:

May 6, 2010 at 10:36 am

So far in the past two Federalist Papers (6 and 7) I’ve seen nothing to suggest that the National Government was to regulate and control commerce between states. What I see is a proposed arbitration and adjudication of differences between the sovereign states.
Carolyn Attaway says:

May 6, 2010 at 12:04 pm

Maggie, I would have to agree with you on the accurateness of the quote by Hamilton. Not only is it distasteful to have to pay taxes to a government that carelessly uses the money it receives from it’s hardworking citizens; but to have to pay mandatory taxes for causes that many believe are unconstitutional or wasteful, is adding even more salt to the wound. Case in point, the current HC Reform bill, and sending taxpayer money to the World Bank to bailout countries like Greece.

Which brings me to the statement that was written with a highlighter on it: “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.”

All I could think of when I read this statement was CALIFORNIA. Today, through the policies and laws the state of California has adopted, this state has crippled their economy to the point of backruptcy and now cries “FOUL!” California demands that her sister states bail her out and pay for her bad decisions. The other states, especially those who have watched their budgets and acted prudently in good times to help themselves through the bad, bristle at the charge that they must pay for California.

Without the Union, I believe the majority of Americans would allow California to fail. Hopefully, because of the Union, California can be assisted but with very strict conditions. California needs to take the New Jersey route.
Roger Jett says:

May 6, 2010 at 12:37 pm

The stated mission of “Constituting America” is to educate America about the validity, necessity and Providential Divinity of the Constitution. On this National Day of Prayer let us pray for the success of this mission. As Janine Turner says “we must not let those who devalue freedom to dominate the debate.” Before we debate though …. let us be sure to pray for wisdom…. learn all we can and can all we learn …. discern truth and preserve it …. be absolutely sure we are right …. and then …. by all means …. go ahead !
David Hathaway says:

May 6, 2010 at 12:49 pm

@Maggie – leapt out of the page at me, too!

@Susan Craig – I believe these were written to show the merit of the proposed Constitution. Yesterday’s Federalist No 6 began,

“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.”

So rather than proposing a system of arbitration and adjudication, or regulation and control of commerce, these last two papers describe the sorts of conflicts that The Constitution could prevent. Or perhaps mitigate. “Adopt The Constitution and these sorts of problems between States won’t occur [as much]“.

I hope I didn’t misread the intent of your comment. I’m sorry if I did.

I also like how Dr. Allen summarizes this:

“What ought to be matters of domestic difference resolved through the rule of law would become matters of international conflict, for which there is no agency or instrument of resolution apart from the contest of force.”

Nicely stated.
Maggie says:

May 6, 2010 at 2:09 pm

@Carolyn…….I immediately thought of California as well. We’re in a rather sad state of existance here in Michigan as well due to the auto industry. I agree that we need to help each other out, but we also need to make sure that bad policy NEVER allows this to happen again.
Susan Craig says:

May 6, 2010 at 2:31 pm

Yes what I was driving at is the current iteration of our government is seemingly intent on control of the national commerce not arbitrating differences between states. As I’ve read these papers the regulation and control of what business can and cannot be was States purview and any disagreements between States were to be adjudicated or arbitrated at the Federal level. I do not see Department of Labor and I certainly do not see a Department of Commerce that can and did tell a man who wanted to grow wheat for his own families consumption that he was in violation of interstate commerce laws.
Debbie Beardsley says:

May 6, 2010 at 3:14 pm

Carolyn, While I am not going to argue with you about California’s budget issues, I am going to take exception to saying we want the other States to bail us out. Yes California is a mess right now partly due to the uncontrollable spending habits in Sacramento and the stranglehold the environmentalists and unions have on us. Another very large part of our problem are illegal immigrants and the fact that the Federal government is not doing their job in securing the borders and dealing with the fact that border states pay dearly for having illegal immigrants. Our Governor has asked the Federal government to pay for incarcerating the illegal immigrants that commit crimes and are sent to jail. This amounts to billions of dollars annually.

As in Arizona, we have a huge problem with illegal immigration in California and the Federal government is choosing to do nothing. It is time for the Feds to step up.
Carolyn Attaway says:

May 6, 2010 at 4:48 pm

@Debbie – I was referring to back in January of this year when Gov. Schwarzenegger asked for a federal bailout up to $8 billion. According to the Hill, “the California gov’t. knows they can’t raise taxes significantly without further destroying the state’s economy to generate jobs. With that option virtually eliminated, the governor is looking for help from outside the state; from the rest of us. Bail us out, he says, or we will end our welfare-to-work program and eliminate services for the elderly and the disabled.” The reports I read did stress that the majority of the voters didn’t favor a bailout, but approx. 33% did.

I agree that the Federal Government needs to step up on illegal immigration. It is creating a huge problem in all states, but mostly in the southern border states. With those borders open, anyone from anywhere can enter the USA.
Chuck Plano, Tx says:

May 6, 2010 at 5:04 pm

Carolyn i agree with you on the problem of illegal immigration but part of the problem in California is that eventhough your Governor has ask the Federal Government to pay for the cost of the incaration of the criminal element involved in illegal immigration it has done very little to confront the problem itself such as Arizona has done. As long as the legislature in Sacramento continues to tax and spend and to encourage illegal immigration as it has done the problem will continue. Each state has it’s responsibility to uphold the Union as well as it’s own soverinty.
Carolyn Attaway says:

May 6, 2010 at 6:10 pm

Chuck, I was replying to Debbie. I am not from California. I agree with you about the taxing and spending in California, and I realize that illegal immigration is a problem.

The original point I was trying to make is that California has the 8th largest economy in the world, so even though it is a state, it’s economy is larger than most countries. Saying that, some legislators feel California is too large to fail, and if we do let it fail, the effects will be felt globally. Look at the impact Greece is making. Many say California is Greece three years from now, if things do not drastically change.

From everything I read, California is also one of the highest in taxes, so they cannot tax their citizens anymore. Therefore, the Gov. requested a Federal Bailout. If California is awarded a Federal Bailout, it will be paid from the taxpayers of the other non-crisis states. Also, from what I read the states are reluctant to bailout California for many reasons, but 2 of them are 1) States are trying to save what money they have for their own needs, and 2) California refuses to change it’s liberal programs if awarded a bailout.
Joshua Foote says:

May 6, 2010 at 7:28 pm

i agree with what carolyn and chuck said. immmigration is not the federal governments responsibility. In my opoinion it shpuld be on the state, its their responsibility to keep the country in working order. The uniuon itself keeps the states in check, and without the union, states would turn on eachother.
Maggie says:

May 6, 2010 at 9:57 pm

@ Joshua……I don’t think that Carolyn and Chuch and saying that immigration is not the Federal Government’s responsibility…..on the contrary, it is very much their responsibility. They, however, are not living up to their responsibility. The problems already exist with too many illegals and incarceratiion issues. Since the Feds refuse to due their job, AZ HAD to take matters into their own hands. California wants to boycott AZ….forget trying to get them to help themselves and deal with the illegals on a state level. The point I believe that others were trying to make is that 1) California needs to deal with the illegals to try to better their own situation and 2) California needs to change it’s incredibly liberal entitlement programs…..these two things need to happen before a national bailout will do anything other than throw money down the toilet.
Maggie says:

May 6, 2010 at 9:58 pm

Sorry….I meant to say “Chuck”. I’m typing too fast.
Carolyn Merritt says:

May 6, 2010 at 10:47 pm

@Joshua. Unfortunately or fortunately, however you want to look at it, immigration is the federal government’s responsibility. However, the federal government is not doing its job, therefore, the states are left to take care of it. Because the government is turning a blind eye to its duties to the states, the states are turning on each other. I find it reprehensible that this president is misstating AZ’s law since it follows the federal law and by misstating the facts, he has helped incur the anger on both sides of the illegal immigration issue.

Please correct me if I am wrong.
Constituting America says:

May 6, 2010 at 10:50 pm

Howdy from Texas. I thank you for joining us today! I, also thank Professor W.B. Allen for his essay. As I was reading his essay today I realized how grateful I am that he has graced us with his wisdom and that he, and our other guest scholars, have so deftly interpreted the meaning of the Federalist Papers. Isn’t it wonderful?

I hope you are checking out the Daily Behind the Scenes Videos that I am filming, editing and uploading every night! They are on the website – it’s the box on top of the “90 in 90 = 180” box – the top, center of the home page. I am wearing a red dress. I am really enjoying filming this every night and writing the daily essays, but I am getting no sleep!!!

Cathy, my co-chair, has written such inspirational essays. Thanks Cathy. You are a true American Patriot – as are all of you who are joining us! Please spread the word about our “90 in 90” and our “We the People 9.17 Contest” for kids!!

Today’s reading continues to focus on union and the danger we would face from Europe if we did not unite.

Strength in numbers and unity through diversity is a true American-ism.

One of the greatest miracles is that America won the Revolutionary War, but also, and no less importantly, that America survived her infancy and was directed by brilliant forefathers who were touched by Divine Providence. The United States Constitution was a miracle as well.

There are a couple of Alexander Hamilton’s phrases that caught my attention today:

The spirit of enterprise which characterizes the commercial part of America,
has left no occasion of displaying itself unimproved.

“The spirit of enterprise..” this is the heart and soul of Americans. We were hard working survivors with an independent streak that gave us the courage to cross the oceans to live in an inconceivable wildernesses and the adventurousness to cross the plains in covered wagons to endure an untamed land. Americans were of a fearless stock driven by an unbridled spirit.

And we still are.

This is why Samuel Adam’s words still ring true to the American soul – a soul that was built upon generations of mavericks:

The redistributing of wealth and pooling of property are despotic
and unconstitutional.

American’s thrive on the spirit of free enterprise and the freedom to pursue it.

The government must not cripple America’s genius.

God Bless,

Janine Turner

5.6.10
Constituting America says:

May 6, 2010 at 10:52 pm

Welcome to Federalist No. 7 – 90 in 90 = 180: History Holds the Key to the Future!!!!

Are you all watching Janine’s Behind the Scenes Videos? http://gallery.me.com/janineturner62#gallery Tonight she gives a shout out to the Constitutional Scholar Guest Bloggers!

Please check these videos out for the lighter side of Constituting America! You will be glad you did!

In Federalist Paper No. 7 Alexander Hamilton explores possible causes of tension, disagreement and outright warfare between states if joined as a loose confederation instead of through the proposed U.S. Constitution.

Territorial disputes, trade disagreements, apportionment of the public debt of the
United States, “laws in violation of private contracts, as they amount to aggressions on the rights of those states whose citizens are injured by them,” and differing alliances between various states and foreign nations, are all listed as divisive factors which could prove destructive without a central arbitrating force.

The fact that even with the ratification of the United States Constitution our country could not avoid civil war, validates Hamilton’s concerns that without the Constitution, the natural tensions between states would eventually erupt. Thanks to the founders’ wisdom and vision, even with civil war, the United States Constitution lit the path for the healing and reconstruction of our Nation.

It is hard to imagine what the United States might have looked like if the Constitution were not adopted, but the founding fathers envisioned a future similar to Europe, and they knew they did not want to emulate the European countries. “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.”

Our current leaders would be wise to assess if it is any more attractive today to emulate Europe than it was over 200 years ago. As we chart the course for the next two hundred years, we must choose if we embrace the U.S. Constitution and the founding principles of our country, including “The spirit of enterprise, which characterizes the commercial part of America.” This “unbridled spirit” as Alexander Hamilton referred to it, is part of what has made the United States a great nation. Will we bridle our spirit of enterprise and drift from the Constitution and our founding principles? And what will our Nation look like in 200 years if we do? Our founding fathers could most certainly predict the outcome, and if we read these papers carefully, we can too.

Cathy Gillespie

PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!
WeThePeople says:

May 6, 2010 at 10:59 pm

So, does this mean that any future “territorial disputes, commercial disputes, debt settlement disputes, state laws violating contractual obligations, and alliances with foreign powers” will fall to the hands of the Supreme Court? It said that there should be a judge, so I assumed Supreme Court or the judicial review.
In response to @Joshua’s comment, if the federal government IS failing to do that job, wouldn’t the next logic step be that the immigration power goes to the states?
Susan Craig says:

May 7, 2010 at 8:36 am

From our initial founding document!
We hold truths these to be obvious and beyond reproof. First God created all men equal, granted them rights; some of them being life, liberty and the freedom to strive for happiness. Second, our Government is instituted to protect and secure these rights; retaining power only with the consent of the governed. Third, When the government disregards its purpose and becomes destructive of these undeniable rights, it is the Right of the People to alter it or institute a new Government.
Tim Shey says:

July 20, 2010 at 2:49 pm

I like what Janine Turner wrote:

“Americans thrive on the spirit of free enterprise and the freedom to pursue it.
The government must not cripple America’s genius.”

Faith in God is freedom. Non-faith is sin–which is slavery. The opposite of faith in God is faith in human convention that rejects God (Marxism, big government). Slaves (Marxists) want to make slaves of other people because this is what their fallen natures dictate (“dictate” is an appropriate word, don’t you think? Somehow it reminds me of the word “dictator”).

Free enterprise comes ultimately from some faith in God. I believe the Hand of God works much more smoothly and effectively in a free-market economy than in a slave (Marxist) economy.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 7, 2010 – Federalist No. 8 – Cathy Gillespie

Federalist Paper 08, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 08, Federalist No. 08

Friday, May 7th, 2010

Thank you all for another week of wonderful insights!

Please encourage the children in your life to sign up online for our We The People 9.17 Contest! We are looking for entries especially in the short film and PSA categories for high school! Middle school and high school students can also enter a cool song or an essay, and the elementary school kids are invited to submit a poem or holiday card. Prizes include $2,000 for the winning high school entries and gift cards and other prizes for the younger kids. More information, including rules and signup form, is available at www.constitutingamerica.org

A recurring theme on these posts and blogs has been our amazement at the foresight, vision and wisdom of our founding fathers. There are times in reading their words that certain sentences seem to leap off the page with relevancy for today. We find this long term vision and wisdom amazing because the elected officials of our generation deal mainly in the here and now. We are an immediate gratification society, and the majority of today’s leaders respond accordingly.

Wouldn’t it be refreshing to hear our current policy debates discussed in the terms we find in these Federalist Papers, with the spirit of civility and long term vision of our founders? What will the new health care bill mean to us 200 years from now? What impact will the various immigration reform proposals have far into the future? Wouldn’t it be interesting for some of our members of Congress to write a series of articles similar to the Federalist Papers, addressing the consequential issues facing our country today?

What words from our generation of leaders will resonate 200 years from now? I can’t answer that question, but I do hope and pray that 200 years from now, United States citizens will still be reading and studying the Constitution and the Federalist Papers, and will still be amazed at the foresight and wisdom of our founders.

Have a great weekend, and wishing you all a wonderful Mother’s Day!

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 7, 2010 – Federalist No. 8 – Janine Turner

Federalist Paper 08, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 08, Federalist No. 08

Friday, May 7th, 2010

Today was yet another stimulating reading. Your blog comments have been thought provoking as well. I thank you and I, also, once again, thank Professor W.B. Allen for his astute interpretation. After reading both Federalist Paper No. 8 and Professor Allen’s essay here is what I have gleaned:

With the birth of the Republic of the United States came the birth of a new type of republic. Republics in the past all eventually lent themselves to the art of war, instead of the art of commerce and free enterprise, as its focus. Our new republic would be monitored and governed by the people instead of military figures.

This was truly an enlightened and inspired experiment.
Yet, safety would have to be secured in order to offer the opportunity of these pursuits and the art of war delineated. If the people did not feel safe, and if war were to spring from internal hostilities, then the focus would shift away from the remarkable aspects of American ingenuity to the colossal attentions war and/or petty skirmishes demanded.

To quote Alexander Hamilton:
“Even the ardent love of liberty will, after a time, give way to its dictates..”

“To be more safe, they, at length, become willing to run the risk of being less free…”

If war were to become the dictate then the executive branch would broaden and the legislative branch, the people’s branch, weaken.

“They would, at the same time, be obliged to strengthen the executive arm of government; in doing which, their constituents would acquire a progressive direction towards monarchy. It is of the nature of war to increase the executive, at the expense of the legislative authority.”

War was thus incompatible with the new industriousness of the American people:

“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.”

Once again our forefathers had the wisdom and wherewithal to prophesy the necessities for a free people to flourish – freedom from dictators, tyranny, war, conquests and internal squirmishes.

Which begs the next big undertaking: replacing the dictator with the wisdom of the people. If the government were to heed upon the whims of the people then how does one educate and inspire the people? The checks and balances of the Constitution were thus both a check against the leaders and the people – a republic instead of a democracy.

In this respect how have Americans fared? I would say on the broad scale, remarkably. I believe our forefathers would be mesmerized with the scope of growth, scientifically, industriously and humanitarianly. They would be in a state of awe. The experiment of liberty and union, though bruised along the way, has remained vital.

Yet, a new generation and movement are upon us. Our founding fathers, I believe, would be a bit wary regarding the modern day wisdom of the people. There was such a hunger for education and inspiration in the blossoming days of the United States because the repression of such liberties had left a formidable and everlasting impression.

Today, do we take for granted the freedoms that have made our country great? I believe that the lack of voting would be a disappointment to our forefathers, as would the seeming unawareness of the founding principles of our country.

If we, as citizens, and our children, do not understand the dignified rights and principles we have then we, and our children, will not know when they are subtly taken away from us. The success of the progressive movement is a prime example.

Thus, the reading and comprehension of the United States Constitution and the Federalist Papers are paramount. I, personally, feel blessed to be having this dialogue with our daily scholars, Cathy and all of you who blog. I thank you for your involvement. Spread the word! Let us all be educated citizens with a knowledge rooted in the thesis of our country so that we may then step forward, voice our opinions and make a difference as informed citizens.

God Bless!!

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 7, 2010 – Federalist No. 8 – The Consequences of Hostilities Between the States, From the New York Packet (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University

Federalist Paper 08, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 08, Federalist No. 09, Federalist No. 10, W. B. Allen PhD

Friday, May 7th, 2010

Federalist #8

The eighth essay presents a hypothetical case of a dis-United States. But it is the general argument that has been built that is germane to understanding the argument. Publius is aware of a “new politics” that has come to be, but Publius is no less aware that it will not produce perfect wisdom and virtue. That creates the moral and practical dilemma of defending the creation of a powerful government, one capable of “harmonizing and assimilating” diverse peoples and interests, while recognizing simultaneously that the government will not make people virtuous and wise. We wonder how to justify doing so, because we wonder whether there is any guarantee of a government’s goodness apart from the virtue and wisdom of its people.

The answers to all these questions, it seems to me, are conditioned on a single premise, namely that one refer to the consequences of the government and not its operations. Now, the chief consequence is peace where war would otherwise prevail. It is true that governments that are energetic – powerful governments – affect the characters of the people they govern. That is a necessary condition of energetic government, a fact that Publius makes clear. We may admit two facts, then – namely, that people will not be made virtuous and wise and, further, that government will nonetheless be driven by public opinion.

Publius calls it an idle theory or “utopian speculation” to imagine removing human weaknesses, but we still question, not whether theories of humans transformed into angels are correct but, rather, the reason for confiding all authority in society into the hands of imperfect human beings and ignoring all the other claims to rule that have existed in human history. There have been claims based on age; claims based on strength; claims based on reason, on wisdom, on piety. Why must we reject all those to place the entire society into the hands of what may be the foolish and the vicious, as Publius has done?

From this perspective even the principle of descent in a monarchy may seem intelligent. For, though from time to time an occasional stupid bastard will be born king, most of the time men get fairly decent, well-bred people (which in the absence of better guarantees is at least something to rely upon) and thus may hope for stability if not good government. The alternative seems to be to submit to rule by people that are not going to be improved by government and that might not govern well. Publius reserves the response to this dilemma to later essays discussing the operations of government. Still, he has raised the stakes very high in this argument, showing that, while the government will not itself make people virtuous and wise, it is nevertheless wise and virtuous to construct such a government.

The eighth essay allows Publius to demonstrate the propriety of such an undertaking in the hypothetical context of an America disunited. For, though no one knows how the experiment will work in the end, it is still possibly to speak at length about the opportunities afforded by modern principles (as he anticipates the elegant ninth essay!). He draws a firm distinction, noting that “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…” Thus, the Americans will not have the old fashioned virtues, based on the martial spirit in small republics of ancient times.

But that observation serves only to augment the question, how does Publius deal with the problem of rendering a people suitable to rule in this new and modern context without guaranteeing their wisdom and virtue? That such reflections introduce the eventual and ultimate response to the question of domestic violence is of great significance. Essays nine and ten deliver the conclusion. But the end of the introduction in the eighth essay firmly establishes that what we desire to now is precisely how turning power over to the people (defending popular government, self-government) produces the promised prosperity and peace without changing human nature. One might almost think it to mean that human nature is no mean thing to begin with!

W. B. Allen

Dean and Professor Emeritus

Michigan State University

27 Responses to “May 7, 2010 – Federalist No. 8 – The Consequences of Hostilities Between the States, From the New YorkPacket (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University”

Susan Craig says:

May 7, 2010 at 9:07 am

The worldview that Hamilton argues from is the fallen condition of man, this worldview has been warped into today where the self-esteem worldview insists that man is inherently good. This is sharply in contrast to all men have value in an inherently fallen condition.
Carolyn Attaway says:

May 7, 2010 at 9:53 am

In reading Paper #8, I could not help but notice that a lot of the arguments Hamilton made to convince his readers of the need for the states to have a Federal Government, can be used today as a defense against our war against terrorism.

The following statement brought to mind the Patriot Act that was written into law on Oct. 26, 2001, shortly after the attack on New York. “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.”

Many Americans did not oppose this legislation at the time of its creation because the attack on American soil created a great fear of possible repeat attacks and Americans were greatly concerned for their safety. Nine years later, more Americans find the Patriot Act outdated and an intrusion into their private lives.

Today, I believe many are in the ‘Utopian speculations’ that we discussed in Paper #6.

@Susan – I agree with you that today the overplayed importance of self-esteem has warped our society and has taken us from the mindset of “The needs of many outweigh the needs of one” to “The needs of one outweigh the needs of many”. The majority in this country are quickly being stripped of their rights to meet the rights of a few. Whoever thought the toy in a happy meal would put extra burdens on a parent and keep them from giving their children healthy food?
Maggie says:

May 7, 2010 at 10:28 am

“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.”……ok…I find this just too eerily close to what we have been doing here in the U.S. Under the guise of “keeping us safe” the government has convinced us for far too long to keep handing them more and more of our liberties.
Maggie says:

May 7, 2010 at 10:37 am

Sorry for the partial repeat of Carolyn’s quote reference. My computer is running very slowly today and her blog post had not yet come through at the time I wrote mine. It just causes me to reiterate that she has a knack for writing exactly what I am thinking.
Constituting America says:

May 7, 2010 at 10:45 am

This is Cathy Gillespie – that quote leapt off the page to me as well!
Carolyn Attaway says:

May 7, 2010 at 11:05 am

@Maggie – great minds think alike

The part that really makes me sit up and take notice are the liberties that are being stripped domestically in the guise of “We know what is best for you”. And all these concerns come in the form of regulations and taxes. Is our government today going the way of the Stamp Act of 1765? And; will the American people follow Patrick Henry’s stance against it?
Peter says:

May 7, 2010 at 11:24 am

Professor Allen poses an excellent question: “How does Publius deal with the problem of rendering a people suitable to rule in this new and modern context without guaranteeing their wisdom and virtue?” This, it seems to me, is one of the most important and ongoing issues in the life of the nation. Can we, in fact, force people to be wise and virtuous in the name of preserving the construct of the nation? There are those who believe we must – and on both sides of the ideological divide. There are others who believe that people have the right to be wrong, to be stupid, to be unviruous. This is one of those places where, it seems to me, it is often hard to thread the needle of liberty.
Susan Craig says:

May 7, 2010 at 11:46 am

Freedom makes a huge requirement of every human being. With freedom comes responsibility. For the person who is unwilling to grow up, the person who does not want to carry is own weight, this is a frightening prospect.
Eleanor Roosevelt
Freedom is the sure possession of those alone who have the courage to defend it.
Pericles
Just a few thoughts on the value and price of freedom.
Constituting America says:

May 7, 2010 at 6:28 pm

Howdy, it’s Janine. I want to say to Carolyn, Maggie, Susan and Peter.. it’s great to have you guys blogging on our site everyday. Great comments! Thank you! I am learning so much.
Carolyn Attaway says:

May 7, 2010 at 7:04 pm

Thank you Janine for putting this site together for all to learn and study our founding documents. I saw your interview on FOX and started with the site on Day 1. I cannot tell you how much I enjoy reading my assignment every night and then getting the opportunity to talk to everyone the next day about what we read. Your guestbloggers have been so informative, and very helpful in understanding what was written. I have learned so much already, and what amazes me most is how timeless our documents are; they could have been very easily written for today!
Barb Zakszewski says:

May 7, 2010 at 7:59 pm

This is a Wonderful Website..I just read about it last night in Human Events, Conservative Spotlight, and checked it out. This is JUST what I have been looking for, as I have recently decided to study the REAL constitution. I’ve been reading, of all things, the Politically INcorrect guide to the Constitution and have been reading those parts of the Constitution as I’ve progressed. Your 90/90 project is GREAT!! I know I’m jumping in a little late, but intend to pick up at this point, May 7, and move forward. In order for us to return our Country to the Principles of the Founding Fathers, we have to know what those principles are, and the reasoning behind these principles. The Founders had differing points of view about what direction to take this country, Federalist v Nationalist, and many of the arguements made back then are being repeated now. I agree it is vitally important for our children to be taught the REAL history of the United States, not the Liberal, America is bad history that is being taught now. Thank you, Thank you!! for this wonderful site.
Constituting America says:

May 7, 2010 at 8:59 pm

Today was yet another stimulating reading. Your blog comments have been thought provoking as well. I thank you and I, also, once again, thank Professor W.B. Allen for his astute interpretation. After reading both Federalist PaperNo. 8 and Professor Allen’s essay here is what I have gleaned:

With the birth of the Republic of the United States came the birth of a new type of republic. Republics in the past all eventually lent themselves to the art of war, instead of the art of commerce and free enterprise, as its focus. Our newrepublic would be monitored and governed by the people instead of military figures.

This was truly an enlightened and inspired experiment.
Yet, safety would have to be secured in order to offer the opportunity of these pursuits and the art of war delineated. If the people did not feel safe, and if war were to spring from internal hostilities, then the focus would shift away from the remarkable aspects of American ingenuity to the colossal attentions war and/or petty skirmishes demanded.

To quote Alexander Hamilton:
“Even the ardent love of liberty will, after a time, give way to its dictates..”

“To be more safe, they, at length, become willing to run the risk of being less free…”

If war were to become the dictate then the executive branch would broaden and the legislative branch, the people’s branch, weaken.

“They would, at the same time, be obliged to strengthen the executive arm of government; in doing which, their constituents would acquire a progressive direction towards monarchy. It is of the nature of war to increase the executive, at the expense of the legislative authority.”

War was thus incompatible with the new industriousness of the American people:

“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.”

Once again our forefathers had the wisdom and wherewithal to prophesy the necessities for a free people to flourish – freedom from dictators, tyranny, war, conquests and internal squirmishes.

Which begs the next big undertaking: replacing the dictator with the wisdom of the people. If the government were to heed upon the whims of the people then how does one educate and inspire the people? The checks and balances of the Constitution were thus both a check against the leaders and the people – a republic instead of a democracy.

In this respect how have Americans fared? I would say on the broad scale, remarkably. I believe our forefathers would be mesmerized with the scope of growth, scientifically, industriously and humanitarianly. They would be in astate of awe. The experiment of liberty and union, though bruised along the way, has remained vital.

Yet, a new generation and movement are upon us. Our founding fathers, I believe, would be a bit wary regarding the modern day wisdom of the people. There was such a hunger for education and inspiration in the blossoming days of the United States because the repression of such liberties had left a formidable and everlasting impression.

Today, do we take for granted the freedoms that have made our country great? I believe that the lack of voting would be a disappointment to our forefathers, as would the seeming unawareness of the founding principles of our country.

If we, as citizens, and our children, do not understand the dignified rights and principles we have then we, and our children, will not know when they are subtly taken away from us. The success of the progressive movement is a prime example.

Thus, the reading and comprehension of the United States Constitution and the Federalist Papers are paramount. I, personally, feel blessed to be having this dialogue with our daily scholars, Cathy and all of you who blog. I thank you for your involvement. Spread the word! Let us all be educated citizens with a knowledge rooted in the thesis of our country so that we may then step forward, voice our opinions and make a difference as informed citizens.

God Bless!!

Janine Turner
5.7.10
Constituting America says:

May 7, 2010 at 9:01 pm

Barb, It’s Janine. We are happy that you have joined us!
Ron Meier says:

May 7, 2010 at 10:18 pm

It seems that this one quote has impacted more than one of us today: “To be more safe, they at length become willing to run the risk of being less free.” Obviously, what is happening in our country today makes us more sensitive to this quote than we might be if we were not living in the age of the progression of entitlements to the levels we see in the EU, with Greece being an example of what can happen if we allow what is happening in our country to progress to that extreme.

A second quote that got my attention was this: “The desire to shed the characteristics of the “old world” was very strong in our founders, who were not far removed from living under those types of governments.” Today, we are far removed from those types of governments and many of our brothers and sisters seem to be wanting us to move in the direction that our founders wanted us to move away from. If more of us had a better knowledge of history, or a knowledge at all, and if more of us knew what we few who are going through this exercise are learning, perhaps we would see through the eyes of our founding fathers. Let us pray that, at the conclusion of this 90/90 exercise, we can see through those wise eyes as clearly as they did.
Constituting America says:

May 7, 2010 at 11:59 pm

Well said Ron! Thanks for joining our 90 in 90!
Susan Craig says:

May 8, 2010 at 9:44 am

Carolyn, I need to address your application of the Patriot act to the quote “To be more safe, they at length become willing to run the risk of being less free.” That is why every time a limiter is needed for safety we have put ‘sunsets’ into them when enacted. Habeus Corpus was suspended for a while during the Civil War. One of the things that brought down Woodrow Wilson was his abuse of free speech during WW I. FDR is still reviled for the restrictions placed on people of Japanese descent even though it is provable that some were active for the Japanese Empire. He decided that in order to continue to dedicate the needed resources to prosecute WW II he did not have the need resources to investigate individually all those of Japanese descent so he decided to quarantine the probable source of espionage and sabotage. The Patriot act does not give blanket surveillance over American communication but it does remove restrictions on communications between Americans and KNOWN terrorist sources.
Susan Craig says:

May 8, 2010 at 9:46 am

I did not post this yesterday as I did not wish to hunt on that rabbit trail while discussing Federalist 8.
Constituting America says:

May 8, 2010 at 12:56 pm

Thank you all for another week of wonderful insights!

Please encourage the children in your life to sign up online for our We The People 9.17 Contest! We are looking for entries especially in the short film and PSA categories for high school! Middle school and high school students can also enter a cool song or an essay, and the elementary school kids are invited to submit a poem or holiday card. Prizes include $2,000 for the winning high school entries and gift cards and other prizes for the younger kids. More information, including rules and signup form, is available at http://www.constitutingamerica.org

A recurring theme on these posts and blogs has been our amazement at the foresight, vision and wisdom of our founding fathers. There are times in reading their words that certain sentences seem to leap off the page with relevancy for today. We find this long term vision and wisdom amazing because the elected officials of our generation deal mainly in the here and now. We are an immediate gratification society, and the majority of today’s leaders respond accordingly.

Wouldn’t it be refreshing to hear our current policy debates discussed in the terms we find in these Federalist Papers, with the spirit of civility and long term vision of our founders? What will the new health care bill mean to us 200 years from now? What impact will the various immigration reform proposals have far into the future? Wouldn’t it be interesting for some of our members of Congress to write a series of articles similar to the Federalist Papers, addressing the consequential issues facing our country today?

What words from our generation of leaders will resonate 200 years from now? I can’t answer that question, but I do hope and pray that 200 years from now, United States citizens will still be reading and studying the Constitution and the Federalist Papers, and will still be amazed at the foresight and wisdom of our founders.

Have a great weekend, and wishing you all a very Happy Mother’s Day!

Cathy Gillespie
Carolyn Attaway says:

May 8, 2010 at 3:00 pm

Susan, I appreciate your feedback on the Patriot Act. The point I was trying to make was when the Patriot Act was signed into law, most Americans felt that the safety of their country was more important than the need to restrict our government from possible communications information. I wasn’t trying to define the Patriot Act in everything that it did, just that most people supported it at the time even though some claimed it gave the Federal Government to much freedom into communications and records. Today, there are some who claim that parts of the Act give the government to much authority.

I believe 16 sections of the Patriot act were set to expire unless Congress decided to extend them. After much debate, Congress passed a bill in March 2006 which renewed the Patriot Act but implemented additional safeguards for civil liberties. 14 of the 16 measures were permanent, but the roving wiretap provision and the FBI access to business records were extended only until 2009. Then in February 2010, Congress passed a one-year extension on three expiring Patriot Act provisions which were:
–Authorize court-approved roving wiretaps that permit surveillance on multiple phones.
–Allow court-approved seizure of records and property in anti-terrorism operations.
–Permit surveillance against a so-called lone wolf, a non-U.S. citizen engaged in terrorism who may not be part of a recognized terrorist group.
Susan Craig says:

May 8, 2010 at 3:04 pm

I don’t know how much more civil they were; there are stories of Senators or Representatives going after each other with their walking sticks.
Carolyn Attaway says:

May 8, 2010 at 4:58 pm

True, but don’t politicians always balk. I always find it interesting how a politician finds a law or rule wrong when he is in the minority, but a similiar rule when he is in the majority is the right thing to do. (Not all politicians, but quite a lot) I would find it interesting to see which Congressmen voted against the Patriot Act, but are for Net Neutrality.
Susan Craig says:

May 9, 2010 at 9:24 am

I agree Carolyn that that would be a fascinating statistic! General observation would suggest that the number would be high.
Susan Craig says:

May 9, 2010 at 9:28 am

Item three was (I think) not necessarily to go for the lone nutcase but to cover instances of a singular person sent out like a sniper. Snipers function on their own but are part of an overall strategy. All of the others I believe were caveated with a predicating contact with known terrorist or sympathizing entities.
Glenn Roberts says:

May 9, 2010 at 9:50 am

Like Barb Zakszewaki, I read about this site in Human Events. I just completed reading all the blogs made to date. Now I am going to Barnes & Noble in Chattanooga, Tn with a list of books that will help me keep up with this program. Thanks for making this site available and best of luck.
Mary Lou Leddy says:

May 9, 2010 at 11:31 am

I have been following this course of study since the very first day. It is so moving that the Founders were so insightful for the future of this great country. I have also been uplifted by the fact that so many other bloggers have had the same thoughts as I have had . And , of course, the guest bloggers ‘ interpretations have been most helpful to me.

As I read the Federalists Papers, I am amazed at how pertinent they are to this day and age.

I thank you all for sharing your thoughts .
Greg Zorbach says:

May 9, 2010 at 6:12 pm

@ Carolyn. You are right on the money with this: “The Patriot act does not give blanket surveillance over American communication but it does remove restrictions on communications between Americans and KNOWN terrorist sources.” In fact, most of the rights its critics are complaining about are ones that do not exist – i.e. for non-citizens. Carolyn’s later summary was a very good one. The final point about enabling surveillance against a non-U.S. citizen engaged in terrorism is true about the latest legislation, but it should not be a requirement for non-citizens. However, given the courts’ unprecedented intrusion into this war’s prosecution it is probably necessary.
Yesterday my fifth-grader grandson noticed this web site up on my laptop and asked me if I was reading the Constitution. He eagerly explained to me that they were studying about the Constitutional Convention. So, he and I got out his Social Studies book and went through it. To my surprise, the book got most of it right, especially the statement that the most important principle underlying the Constitution is individually liberty. My joy was dashed when I came across the following explanation of the First Amendment: “It also says that the government cannot promote or financially support any religion.” And this is at a Catholic academy. However, the textbook is a CA standard one. In my opinion, it would have been better had they just used the simple wording of the amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Found another surprise in his textbook – the last three lines of the second stanza of “America The Beautiful”: “God mend thine every flaw, Confirm thy soul in self-control, Thy liberty in law!”
Self-control and liberty in law. How pertinent.
Susan Craig says:

May 11, 2010 at 8:51 pm

@Carolyn: Our ‘wonderful’ Congress has just removed the “sunset” from the Patriot Act!!! Them’s fighting words.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 10, 2010 – Federalist No. 9 – Cathy Gillespie

Federalist Paper 09, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 01, Federalist No. 09, Federalist No. 09

Monday, May 10th, 2010

Thank you Professor Knipprath for yet another enlightening essay!

In Federalist 1, A General Introduction, Hamilton asserted that a wrong decision on this “important question” of whether or not to ratify the United States Constitution, would “deserve to be considered as the general misfortune of mankind.”

Federalist 9 reminds us of the grand experiment that America was and is. History was littered with failed Republics. Another failure could forever doom future attempts at governing within the framework of a Republic. Success, however, could inspire similar governments around the world, liberating mankind. The stakes were high, and the founders recognized their place in history.

This was America’s chance to prove that a Republican form of government could work – that political science had progressed, and refinements had been made including, as Hamilton lists:

“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,” and ”the ENLARGEMENT of the ORBIT within which such systems are to revolve.”

I love how Hamilton takes on the arguments of his opposition, and further quotes, paraphrases, and explores Montesquieu to make his points, ending with an explanation of the importance of the State governments within the framework of the proposed Constitution, and their “exclusive and very important portions of sovereign power.”

Thomas Jefferson called the Federalist, “The best commentary on the principles of government, which ever was written.” Federalist 9 certainly lives up to this high praise.

Looking forward to Federalist 10!

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 10, 2010 – Federalist No. 9 – Janine Turner

Federalist Paper 09, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 09, Federalist No. 09

Monday, May 10th, 2010

Howdy from Texas. I want to thank you for joining us today and I thank Professor Knippratch for his most insightful essay today!!! Thank you, Professor Knippratch.

I am in the middle of tornados whirling through

our ranch so I have to make this brief. I am once again amazed and inspired by the intellectual tenacity of our forefathers. It is my hope, through our foundation, that we may encourage our youth to read, read, read.

History truly is the key to our future.

My favorite passage of Federalist No. 9 is:

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 behaviour;

the representation of the people in the legislature, by

deputies of their own election; these are either

wholly new discoveries, or have made their principle

progress towards perfection in modern times

“..or have made their principle progress towards perfection in modern times.”

This line captures my attention. Through out history many empires and republics had been formed but became lost in the mire of war, conquests or tyranny, as mentioned in earlier essays. Now, according to Alexander Hamilton, The United States Constitution, by analyzing the annals of history and recalculating and reinventing the basis of former Republics, offered “progress towards perfection in modern times.”

Our forefathers, guided by the hand of Divine Providence, etched onto the new sphere of political science a masterpiece, a stroke of genius that would be embraced and cherished by Americans and emulated throughout the world – even today.

How sad it is that we Americans have such little time to devote to the revolutionary and relevant thesis of our country; that we have forgotten to cherish such a gem. We, as a modern society, have forsaken our great founding principles, as a kitten is forsaken on the side of the road.

It is Cathy’s and my goal to reach out to the schools across America and by this September 17^thhave 20 minute DVDs (or downloads) available of the winners of our contest – hip, cool and contemporary – discussing the United States Constitution in all her glory.

Then when a 7^th grader gets in your car, he or she won’t say, “What’s the Constitution?”

And we, as parents, as adults, as citizens, through our “90 in 90 = 180,” will be re-stimulated, re-educated and fortified to take on whoever wants to challenge, defy or ridicule the validity of the United States Constitution. We will be ready to teach our children, our families, or our friends about the “perfection of modern times.”

God Bless,

Janine Turner

10 Responses to “May 10, 2010 – Federalist No. 9 – Janine Turner”

Janet Drennan says:

May 10, 2010 at 11:37 pm

Bless you for this remarkable site and your commitment to First Principles! I had NO IDEA that this is what you’ve been up to~way to go!

Blessings,
Janet
K. Fegert says:

May 11, 2010 at 12:51 am

I heard you on Mark Levin today, and, I can’t tell you how much I appreciate finding out about another conservative from the entertainment industry. I just saw a bumper sticker that read “God Bless John Wayne”, and I think “God Bless Janine Turner” would be as appropriate. Best wishes and God’s speed in your incredibly prescient endeavour. There is very little in our country of as pressing importance as properly educating our future leaders.
Davis Northnagel says:

May 11, 2010 at 1:48 am

Just heard about this remarkable project on the Mark Levin show today. Keep up the good work! Davis Northnagel
David Barr says:

May 11, 2010 at 5:53 am

HI, I AGREE WITH JANET, WAY TO GO, LADIES!! I HEARD YOUR INTERVIEW WITH MARK TONIGHT AND I JUST FELT SO PROUD OF YOU!! I WRECKED MY CAREER, AS WELL, WITH MY INABILITY TO SIT STILL WHILE PEOPLE TRASH EVERYTHING WE STAND FOR!! DEPOSITING SO MUCH JUNK, THAT I JUST CAN NOT BELIEVE WHAT PEOPLE ARE THINKING! THE FIRST THING I DID WAS LOG ON TO YOUR SITE, SIGN UP AND STAND UP TO BE COUNTED! PLEASE CONTACT ME AND LET ME KNOW WHAT I CAN DO TO HELP THE CAUSE!!!! I KNOW A FEW PEOPLE!! YOURS, D.B.
David Barr says:

May 11, 2010 at 6:08 am

WAY TO GO! HEARD THE INTERVIEW WITH MARK TONIGHT, SO PROUD OF YOU! CONTACT ME, I CAN HELP. YOU HAVE MY INFO. UNABLE TO STAND ALL THE JUNK AND TRASHING OF WHAT WE STAND FOR! TEACHING IS THE KEY! I CAN’T SAY ENOUGH! GOD BLESS YOU, LADIES! D.B.
David Barr says:

May 11, 2010 at 6:15 am

Way to go; heard the interview with Mark tonight. so proud of you! Contact me, I can help. Unable to take all the junk and trashing of what we stand for! Education is the KEY to stopping the destruction!! GOD BLESS YOU, LADIES. D.B.
Randy says:

May 11, 2010 at 8:09 am

I found this website by listening to Mark Levin’s radio show. I really like the educational content. There is another website http://www.TheseSelfEvidentTruths.com that also has good history on the Constitution, plus some occassional commentary on current events. It is heartening to see a renewed interest in our founding documents. It is truly sad that the principles of freedom are not taught in our public schools, but instead, students are sent home because they wore a t-shirt with an American flag. Let’s hope it is not too late to save our republic. Keep up the good work, Janine and Cathy.
Bill in Dallas says:

May 11, 2010 at 3:14 pm

I had no clue, I heard you on Mark Levin show, was so thrilled to find this site and what you and Cathy have been upto. God bless and keep you. I’ve asked my 11 year old granddaughter to start following you. Thank you for what you do. Pray for Mark, I worry about his health, we need his voice and his love for the constitution.
Debbie Beardsley says:

May 11, 2010 at 4:56 pm

I have really enjoyed reading the Constitution and Federalist Papers. It is too bad the rest of the country won’t take the time. This may be a little off topic, but it is related, I was shocked yesterday when I heard Obama’s nominee for Supreme Court say we are a Democracy. How can we expect the Court to uphold the Constitution when they don’t even know it? She should know we are a Republic and not a Democracy. Time to pull her nomination and put someone in place that has actually read the document.
Barb Zakszewski says:

May 11, 2010 at 9:47 pm

Well that would basically leave anyone reading this website as possible nominees to the Supreme Court. I don’t have a law degree so that leaves me out…Anyone else? Seriously though, Debbie you are absolutely right…How can people swear to uphold and defend a document that they have never read, or see as antiquated or worse, irrelevant? I’m reading the Politically Incorrect Guide to the Constitution and find it amazing and appalling how the Supreme Court went so quickly from interpreting the Constitution to ignoring it, or recreating it to suit their own personal agendas and belief systems. Barack Obama is the Woodrow Wilson of our times..This country has strayed so far from the founding principles as to be almost unrecognizable…We have to get back to where we started!!

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 10, 2010 – Federalist No. 9 – The Union as a Safeguard Against Domestic Faction and Insurrection, for the Indpendent Journal (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist Paper 09, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 09, Federalist No. 10, Joerg W. Knipprath

Sunday, May 9th, 2010

Federalist Papers 9 and 10, though written by two different authors (Hamilton and Madison, respectively), both address the benefits from large “confederate republics” for internal peace and political stability. Of the two, Federalist 9 is the less momentous, but it raises a number of points that apply as well to other papers that follow.

First, there is the matter of defining terms. Throughout the Federalist, the writers define terms that often are used rather flexibly by others, including “republic” and, here, “Confederate Republic.” Hamilton in Federalist 9 wants to let his readers know precisely what distinctions he is drawing. Hamilton defines a confederate republic as a “convention by which several smaller states agree to become members of a larger one.” While that distinguished such a polity from a monarchy or an aristocratic republic (Rome and Venice), the definition leaves plenty of interpretive room to accommodate different types of confederacies, a discretion Hamilton and the others use to their advantage.

Second, Hamilton responds to the Antifederalist charge of “consolidation,” a frequently-used disparagement at the time that invoked images of a distant, tyrannical, and out-of-touch centralized government and of destruction of state-level authority. (Were they onto something?) Such consolidated government was said to be the opposite of a confederacy. The proposed constitution, Hamilton responds, does not abolish the states, but, rather, makes them a constituent part of the national sovereignty (an issue explored in more detail in future papers) and leaves with them certain exclusive and very important aspects of sovereign power (again, to be examined further in subsequent papers).

Hamilton’s approach accomplishes a couple of important goals and reveals a strategy followed over and over by the writers. For one thing, he ties the new Constitution to the old Articles. That creates the illusion of constancy, important for gaining political acceptance of the new plan. Placing the government under the Constitution (“strong” federalism) on the same continuum as that under the Articles (“weak” federalism) makes the difference between the two just a matter of degree—and an advantageous degree, at that—rather than of kind. This illusion is also important for blurring the revolutionary origins of the Constitution in a process that ignored the constitutional framework under the Articles. For another, emphasizing the confederal nature of the new structure supported the rhetorical coup of the pro-Constitution advocates styling themselves “Federalists,” a much more anodyne and sympathetic term than “Nationalists” or “Consolidationists.” That also, conveniently for the Federalists, deprived the Constitution’s opponents of the moniker most suited to them and left them tagged with the politically unenviable designation of just being “anti” something, and anti “federalism,” at that.

Third, Hamilton helps himself generously to quotations from the Baron de Montesqueiu. The latter’s main work of interest to the Framers, The Spirit of Laws, was cited frequently to support their positions, though not always in the “spirit” in which Montesquieu intended. Unlike the Federalist, Montesquieu saw a rarified interpretation of the English constitutional monarchy as ideal.

More important than the references to Montesqueiu as such is the high level of discourse they represent. Note also Hamilton’s reference to the Lycian confederacy. Discussing political philosophy and comparative constitutional systems is a common device in the Federalist, with frequent citations to other systems, ancient and modern. While these citations and the authors’ interpretations often were editorialized to prove a point (the Federalist was persuasive advocacy, not dispassionate analysis), the casual use of them meant that the authors and the audience had a common frame of reference.

The level of discourse evidenced by the Federalist is remarkable. Granted that the writings may not have targeted the day laborer, the audience was nevertheless a wide segment of society. After all, these papers were not just notes on an internal debate. They were disseminated to a rather literate American public well beyond the participants in the New York and Virginia ratifying conventions. There was a broad level of understanding of the classic “liberal arts” among the middle and upper classes that made such discourse possible. True, Hamilton attended King’s College (Columbia University), but would the typical graduate of Columbia today be as well-grounded in Western civilization and thought (in contrast to identity group “victims studies”) as Hamilton and his audience? Is one likely to hear such discourse in the halls of Congress or in the media today? If not, does that say anything about our fitness for republican government?

That brings up a theme to be discussed further in connection with Federalist 10, the idea of “republicanism.” Republicanism animated Americans’ self-identity. Start with the name of just the writers of the Federalist, “Publius.” The man of the “people” (not of “states” or “interests”). It comes from Publius Valerius Publicola, a legendary statesman and general of the Roman Republic’s founding. Why write under a pseudonym? There was a legal reason in the history of the English law of publications of criminal libel, but by 1787 it was just a fashion—but one carefully selected. Opponents of the Constitution, too, chose their names with care, and the same person might change names to fit the occasion. Thus, in 1793, in defending President Washington’s Neutrality Proclamation, Hamilton wrote under the pseudonym “Pacificus” (the “peaceful one”). Most of their pseudonyms, from Publius to Cato to Agricola to Brutus to Cincinnatus, were taken from Roman Republican history. The Framers—and Americans generally—were fascinated, nay, obsessed, with the Roman Republic. They saw themselves as heirs to the Roman tradition of classical republican virtue, in their civically-involved citizenry, the militia basis for political participation, the need for inculcation of shared political values, and (for some, e.g., Jefferson and Patrick Henry) the repository of civic virtue in a broad class of yeoman farmers and artisans.

But, as Hamilton shows, the Framers were also keenly aware of the fragility of many republics. Hamilton sees the means of saving the American republic through its size and through the use of a representative system. Madison picks up that theme in Federalist 10.

29 Responses to “May 10, 2010 – Federalist No. 9 – The Union as a Safeguard Against Domestic Faction and Insurrection, for the Indpendent Journal (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”

Susan Craig says:

May 10, 2010 at 7:20 am

Thank you Professor Knipprath for your discussion on this paper. Like you I was struck by a portion of the Montesquieu quotation. That being; “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.”
The following argument in support of the Constitution leapt out at me. “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.” It shows me how important it was that the corporate entity known as States be treated as deserving of representation as a whole and separate from individual citizen representation.
Maggie says:

May 10, 2010 at 8:54 am

Fabulous write up and interpretation. I now have a much better understanding of this paper and the mindset within which is was composed.

@ Susan….the same second quote leapt out at me. It showed me how important it is that the Federal Government not overstep the individual States’ rights. We are, afterall, a Confederate Republic…not a consolidation.
Susan Craig says:

May 10, 2010 at 9:08 am

This paper reinforced my belief that the 17th amendment was a serious mistake and disenfranchised the individual States! This being said a repeal of this amendment would be a good step towards correcting what has gone amiss.
Kay says:

May 10, 2010 at 10:02 am

Prof. Knipprath also helped my understanding of Hamilton’s reasoning. The Founders undertook their task of formulating the Constitution by looking back and looking forward, what worked in the past, what governments had deficiences, what could conceivably work to provide the States, as part of the whole, for “peace and liberty” as opposed to “domestic faction and insurrection.” Our Congress has no sense of the past, except perhaps FDR’s New Deal, which seems to be the best thing since sliced bread, and Congress has just expanded, and expanded, on that with the out-of-control control of the Health Care Reform Bill. I hope those arising to run for public office are educating themselves on the reasoning behind the Constitution, and applying those lessons (which are timeless) to situations facing us today.
Every candidate should be asked, “When was the last time you read the Constitution? Are you familiar enough with it to judge every piece of legislation by its provisions?” I have already been asking this question of candidates, and unfortunately, the answers are no to nebulous.
Now I look forward to reading Madison in the next paper and the commentary. Your posted comments enlighten my understanding of every paper with thoughts I never would have drawn from the reading.
Carolyn Attaway says:

May 10, 2010 at 10:50 am

Prof. Knipprath, I thoroughly enjoyed your explanation of Federalist Paper #9. With your write up, I was able to breakdown the paper into several main components, and concentrate on the main theme of each.

As with Susan and Maggie, I too picked up on Hamilton’s reiteration of the difference between a Confederate Republic consisting of constituent parts and that of a Republic with consolidated states. Earlier on this web-site, while discussing amendments, I mentioned that number 17 needed to be repealed because in its current status, it diminishes the States representation in the U.S. Senate. I believe this paper strengthens the argument that the U.S. Senator should be appointed to the Senate to represent the States best interest and not the voters.

For example, when the heath care reform bill was being debated in the Senate, many State Governors requested that their U.S. Senators vote against the bill because of the damage the cost would do to their state. Instead, many U.S. Senators were more concerned with party loyalty and re-election bids; they voted against their states best interest. Now, many States are creating legislation to ward off the damage their Senators help create.

Another section that caught my eye was ‘The Science of Politics’. This is not the first time that I noticed the concentrated effort to stress the importance of power into distinct departments. The statement ‘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.’

I find it humorous that Hamilton says that this legislative balance was not known or was imperfectly known to the ancients. If that is the case, I can’t help but wonder if we evolved 360 degrees and are now experiencing a generation that does not realize the importance of balanced powers within the Federal Government. And, if that is why we yet again find ourselves comparing our current troubles to that of Greece.

One last thing that caught my attention, the word Framer. Until this time, I was concentrating on the word founder, but Prof. Knipprath used the word framer when describing our founding fathers. This word adds a new dimension for me when reading these documents. Now I can see these documents as a framework that is composed of many parts that are to be fitted and joined together to support our founding. A foundation is much stronger when it has a framework to support it.
Richard Heck says:

May 10, 2010 at 10:59 am

I appreciate Prof Knipprath’s words however he needs to write more in laymans terms. I had a hard time reading, understanding and following his article, I cannot imagine what my teenagers are going to say about todays blog.
Margaret Wilkin says:

May 10, 2010 at 1:26 pm

Prof. Knipprath also helped my understanding of Hamilton’s reasoning. Liberty can only exist when we have a balance power. The Founders had this amazing foresight of what the future could become. They did this by their understanding of history of other governments and the great philosophers of the day.
It strike me that we the citizens of the United State have to take a test to drive a car , to become a lawyer, get all sort of degrees, but the people that hold our liberty and that are sworn to uphold the constitution do not have to do anything to prove they understand the constitution. Just a thought .
Susan Craig says:

May 10, 2010 at 1:58 pm

I’ll get the apology out of the first. Richard I truly do not mean to pick on you but your comment gives example as to why we need to take education away from the government. Where we presume that the ability to ascertain a meaning by context or dictionary has been lost or is not important.
Andy Sparks says:

May 10, 2010 at 3:03 pm

I think it is important to distinguish the context in which Hamilton is writing. He is trying to persuade those that would vote against ratifying the Constitution to support it. Thus, he is emphasizing to the reader that the states will be sovereign in some capacities as defined by the Constitution. However, both he and Madison (at this time) saw the inherent weakness of the federal government compared to the states under the anemic AOC. Madison even proposed in the Convention a ‘negative’ against all state laws for the federal government, and nobody was for a more centralized government than Hamilton, as history bears out after ratification. During the writings of these essays then, one should read them understanding that at this time, all three writers, while assuaging those moderate anti-federalists concerned about the powers of their states, wanted a vastly more energetic national government.
Chuck Plano, Tx says:

May 10, 2010 at 3:17 pm

Mabye Constituting America could index all of the guest bloggers blog on each Federalist Paper so they would be avaliable for future reference.
Carolyn Merritt says:

May 10, 2010 at 8:08 pm

I agree with Chuck Plano on indexing all of our guest bloggers. I have not blogged in the last several days, but trust me, I’ve been studying and reading all of the blogs by the fantastic guest bloggers. Thank you Prof. Knipprath for clarifying what Hamilton was saying in Federalist #9.
Lynne Newcomer says:

May 10, 2010 at 8:29 pm

I have read and reread the 17th Admend.and compared it to the original arrangement,I must say I can not see an advantage to repealing the 17th.I understand there is Party pressure but I don’t see this as reason to take the vote from the people.Special interests and Party pressure is a difficulty,but in this day, where incumbents are sweating the results of the awakening people ( long long over due) I see this as perhaps the intentions , the spirit of the passage of it. Please if anyone can show more light revealing my error I am open .
Constituting America says:

May 10, 2010 at 10:43 pm

Howdy from Texas. I want to thank you for joining us today and I thank Professor Knippratch for his most insightful essay today!!! Thank you, Professor Knippratch.

I am in the middle of tornados whirling through

our ranch so I have to make this brief. I am once again amazed and inspired by the intellectual tenacity of our forefathers. It is my hope, through our foundation, that we may encourage our youth to read, read, read.

History truly is the key to our future.

My favorite passage of Federalist No. 9 is:

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 behaviour;

the representation of the people in the legislature, by

deputies of their own election; these are either

wholly new discoveries, or have made their principle

progress towards perfection in modern times

“..or have made their principle progress towards perfection in modern times.”

This line captures my attention. Through out history many empires and republics had been formed but became lost in the mire of war, conquests or tyranny, as mentioned in earlier essays. Now, according to Alexander Hamilton, The United States Constitution, by analyzing the annals of history and recalculating and reinventing the basis of former Republics, offered “progress towards perfection in modern times.”

Our forefathers, guided by the hand of Divine Providence, etched onto the new sphere of political science a masterpiece, a stroke of genius that would be embraced and cherished by Americans and emulated throughout the world – even today.

How sad it is that we Americans have such little time to devote to the revolutionary and relevant thesis of our country; that we have forgotten to cherish such a gem. We, as a modern society, have forsaken our great founding principles, as a kitten is forsaken on the side of the road.

It is Cathy’s and my goal to reach out to the schools across America and by this September 17th have 20 minute DVDs (or downloads) available of the winners of our contest – hip, cool and contemporary – discussing the United States Constitution in all her glory.

Then when a 7th grader gets in your car, he or she won’t say, “What’s the Constitution?”

And we, as parents, as adults, as citizens, through our “90 in 90 = 180,” will be re-stimulated, re-educated and fortified to take on whoever wants to challenge, defy or ridicule the validity of the United States Constitution. We will be ready to teach our children, our families, or our friends about the “perfection of modern times.”

God Bless,

Janine Turner

May 10, 2010
Constituting America says:

May 10, 2010 at 11:54 pm

Thank you Professor Knipprath for yet another enlightening essay!

I would like to take a moment to recommend a book that I have found useful, and that you all may too:

How to Read the Federalist Papers, by Anthony A. Peacock. This book may be purchased at the Heritage Foundation bookstore: http://astore.amazon.com/heritagefoundationbookstore-20/detail/0891951350 It is only about 100 pages, and full of great information!

In Federalist 1, A General Introduction, Hamilton asserted that a wrong decision on this “important question” of whether or not to ratify the United States Constitution, would “deserve to be considered as the general misfortune of mankind.”

Federalist 9 reminds us of the grand experiment that America was and is. History was littered with failed Republics. Another failure could forever doom future attempts at governing within the framework of a Republic. Success, however, could inspire similar governments around the world, liberating mankind. The stakes were high, and the founders recognized their place in history.

This was America’s chance to prove that a Republican form of government could work – that political science had progressed, and refinements had been made including, as Hamilton lists:

“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,” and ”the ENLARGEMENT of the ORBIT within which such systems are to revolve.”

I love how Hamilton takes on the arguments of his opposition, and further quotes, paraphrases, and explores Montesquieu to make his points, ending with an explanation of the importance of the State governments within the framework of the proposed Constitution, and their “exclusive and very important portions of sovereign power.”

Thomas Jefferson called the Federalist, “The best commentary on the principles of government, which ever was written.” Federalist 9 certainly lives up to this high praise.

Looking forward to Federalist 10!

Cathy Gillespie
Roger Jett says:

May 11, 2010 at 12:12 am

Lynne Newcomer. Without the 17th Admendment there would not have been the “Miracle in Massachusetts” back in January. It would not have truly been the people of Massachusetts’ seat to fill, but would have belonged to the party machine. With the passage of this admendment we drew closer to Lincoln’s desciption of a “government of, for and by the people.”
Susan Craig says:

May 11, 2010 at 7:08 am

Roger Jett, while the “miracle” would have been a little more unlikely it might not have been necessary. The Senators were never to be direct representatives of the individual citizens. They were to represent the people as a corporate group overall as a State. They were sort of like in a large company where the union is the like the House of representatives. A Senator would be like the different Department heads representing the interests of their respective Departments (each department management selects the person to represent the needs and wants specific to the department as a whole). No longer do the specific States have a representative the looks to the overall of the State specifically because they no longer are selected at the State level while it is warm and fuzzy to have direct say in essence you did have a say by the selection of State Senators and Representatives. Also, if Massachusetts had not changed their law to preempt the possibility of a Republican Governor appointing the replacement for John Kerry should he have won the Presidency the ‘miracle’ would not have happened at all.
Carolyn Attaway says:

May 11, 2010 at 8:28 am

As excited as I was for the election of Scott Brown to the U.S. Senate; it was more for the ability to stop the majority’s agenda than his ideology. I believe this election came about because of over 100 years of misuse of the Senate Body. With the ratification of the 17th Amendment, party loyalty usurped State representation in the U.S. Senate. Senators could be elected over and over again by a majority of voters, thus dominating the seat and the ideals of the voters that elected him.

The voters are represented in the House of Representatives, if they control the Senate as well, I believe this distorts the voters power, and those in the minority are overruled in every stance. If the Senate only reported directly to the State, the bullying factor from the party and the Administration would be diminished, thus giving the State a voice in the Federal gov’t. The State as a whole is a greater entity and has more strength in dealing with legislation that could hurt it’s citizens than the individual voter.

I believe a lot of the ills States currently have to deal with are a direct result of Senators putting their party loyalty ahead of the State’s best interest. For example, many Governors are telling their Senators to kill Cap and Trade, but who are their Senators really listening to?
Lynne Newcomer says:

May 11, 2010 at 8:49 am

@Roger Jett, I agree with you.I see more opportunity for corruption with appointments.The people are smart enough to bear the consequences,because we have the vote .Thanks for your input.
Chuck Plano, Tx says:

May 11, 2010 at 10:42 am

In regards to the 17th amendment if we returned with the repeal of the 17th the states would regain a large degree of control of the Federal System. It is much easier to change and or control the State Legislatures than it is the Federal Legislature. No longer would there be “money” involved in Senate elections and the beholding of Senators to special interest groups because of their campain contributions. Currently Senators spend on average over $10,000,000.00 dollars to get elected, where do they raise that money? Senators would have to answer to their state legislature for their votes such as the receint health care bill that will ultimately cost the states billions.
Susan Craig says:

May 11, 2010 at 11:03 am

Lynne, yes the opportunity is there. However, now the corruption is not so confined to the State Government level. Prior to the 17th amendment Senators were not vulnerable to the circumstances that led to and have been exacerbated by Campaign Finance Reform! If you didn’t like the Senators your state’s Governor, State Senators and State Representatives selected to represent the State as a whole; they are easier to reach, influence and/or change.
Paul S. Gillespie says:

May 11, 2010 at 11:11 am

Regarding 17th Amend., Lynn and Roger: Party loyalty as an encumbrance to the fidelity of a Senator to his State is a reality. Couple that with the unmitigated influence of campaign contributions, the majority of which does not originated within that State, and the result is a Senator with too many obligations to effectively represent this State, much less the people electing him.
Roger Jett says:

May 11, 2010 at 2:32 pm

Valid points have been presented in opposition to the 17th Admendment and I concede that in theory state governments suffered a level of disenfranchisement as a result of it’s ratification. Framers of the Constitution recognized that Article 1, section 3 in granting constituency to the state legislatures instead of the populace in regards to the Senate, greatly increased the likelihood that those same state legislatures would ratify it. Beyond that there were substantial differences of opinion on constituency issues that drifted to the extreme in both directions.
I believe that neither Article 1, section 3, nor the 17th Admendment perfectly address the numerous difficulties that we have faced with regard to the selection of Senators. Historically, the “realities of human nature” afflicted those serving in state legislatures during the first 125 years when they were the constituents, since factionalism does not discriminate and all are vulnerable. In the beginning, not all states elected their senators the same way. Intimidation and bribery occured at times. I saw noted that between 1866 and 1906 that nine bribery cases were brought before the Senate. On numerous occasions contentions arose that prevented state legislatures from electing new senators. At one point Delaware went four years without a seated U.S. Senator.
As the point was well made in posts by others, even under the 17th Admendment there are times when vacancies are temporarily filled by state govenors. I ask that each of us compare and contrast the appointment of Roland Burris to the Senate seat for Illinois versus, the special election of Scott Brown to the Massachusetts vacancy. So far, I’ve not seen what I considered to be “unmitigated influence” steming from outside conservative campaign contributors to Senator Brown. He seems fairly focused on listening to and serving his Massachusetts constituency…. the people.
Susan Craig says:

May 11, 2010 at 8:14 pm

The purpose of the bicameral legislature was that in one house representation would be by population (3 guesses and the last 2 and 3/4 don’t count) and the other would be where all constituent states would be equal (same offer) that way New York could not bully Wyoming on issues of sectional importance.
Tina Bogani says:

May 12, 2010 at 5:48 pm

This is my first blog. FP #9 and #10 are my favorites. I always find myself reading the papers in the context of current events. One of the quotes that struck me was, “…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.” For me, this sounds like a description of “diversity” and how one group should be treated “more fairly” than another (ie, “empathy in judging”).

I’m sorry to say, even after reading the arguments regarding the representation of the States interests in the Senate, how would it be different than what we have now? Wouldn’t the representatives of the States appointing the Senators be appointed by the People of the State in the first place? Sorry to be dense – can someone explain one more time how it should have worked and how it works now?…
Susan Craig says:

May 12, 2010 at 7:33 pm

I’ll try and take a shot at it. Think of the nation as say a large conglomerate company. where there are scads of workers in many different subsidiaries. Say one subsidiary has mainly teamsters, another iron workers, another service, they elect someone to represent them and their concerns to the conglomerate board this would be like the house of representatives. Previously the Senate would have be made up of people who were selected out of the various subsidiaries to represent the overall concerns of the subsidiary say steel framing another subsidiary would say be agricultural services these would be selected by management and workers combined with final say being who the head judges to be best able to represent the subsidiary as a whole. As the Senators are now selected it is a beauty contest voted on by every one and concern no longer is to the corporate body but to the various constituencies.
Roger Jett says:

May 12, 2010 at 7:51 pm

Tina Bogani. I may not be of much help in answering your question, but please let me try. It is a very good and appropriate question. Originally, under the Constitution (Article 1, section 3) U.S. Senators were elected by the state legislatures of their respective states. Under that arrangement the state legislature was the Senator’s constituent (the people he answered to and was responsible to represent the best interest of). By the early 1900′s there was sufficient disatisfaction within the nation to change that original arrangement and the legislative branch of the federal government proposed to the states the 17th Admendment for ratification. There were 37 states out of what was then 48 states in total (in 1913) that ratified this admendment into law. Under this new arrangement Senators were now to be elected directly by individual voters within each state and the individual citizens now were the Senator’s new constituency. That’s the quick and easy answer and I think it’s factual . Which arrangement is best involves a number of competing opinions as I think you’ve seen already in the ongoing debate. It sounds wishy washy of me, but I really think there truly are some pretty good arguments on each side.
Kellie says:

May 16, 2010 at 3:39 pm

@Roger Jett: Thank you for your explanation, because the 17th Amendment and the story behind it was confusing me. I wonder, could this amendment contribute to the “lifetime” US senators we now have holding office today? Would it have been different if the senators were determined by the state legislatures, which are more diverse. My guess is that the terms of these senators would be shorter and we’d have more of a voice in government.
Roger Jett says:

May 16, 2010 at 8:15 pm

Kellie, I’m not sure I would agree that state legislatures are more diverse than the general population. Like it or not our political system is now and has pretty much always been a two party system at both the national level and the state level. Amongst the people there is enormous diversity, but within each party I believe that many of the minorities go pretty much unrepresented at the state legislature level. States have a tendency to lean to one party, even when they have a substantial number of voters who profess to be unafilliated and independent minded. The explanation of why we have so many “lifetime U.S. Senators” probably requires a better understanding of human nature than I currently have. My quess would be that Senators as a rule have been successful at convincing us that we have a voice with them (not been true lately though… has it?).
Sydney Siskind says:

May 28, 2010 at 12:27 am

Are you kidding me? I’m not certain I can put myself behind what you have said. But I will surely be back to find out more soon.

March 6, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Federalist No. 10 – Janine Turner

Federalist Paper 10, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 10, Federalist No. 10

Brilliant. Brilliant. Brilliant. Mesmerizing. I agree with Professor Knipprath words, “Federalist No. 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying.”

Well said, Professor Knipprath and your essay today is quite brilliant, too, and thought provoking, as well. I thank you for your devotion to “Constituting America” and for all of your esteemed guidance.

I thank all of you who have blogged with us today and for your stimulating dialogue.

There is so much wonder, scope, knowledge, perspective and vision in this paper that I do not even know where to begin. I do believe I may have to meditate upon it before I can give it the respect it deserves.

What am I learning is the difference between a democracy and a republic and through these papers, and this paper in particular, I am getting a clear vision about why we are a republic. Passions, individual perspectives and political factions breathe life into liberty but they must be channeled and curbed. The answers to this challenge lie in our representative form of government.

To quote James Madison:

“Liberty is to faction, what air is to fire, an aliment, without which it instantly expires”

I am sharpening my insights regarding Republican virtues. These virtues deserve to be studied in school and taught in the home. We, as citizens, would be wise to delve into the psyche of the Revolutionary patriots, imbue their sense of virtue and wear their armor of valor. Ah, to breath the air they breathed, to feel the electricity they felt – the enlightment, the courage, the inspiration, the determination.

Knowledge is power. How fabulous that we are on this journey, this path of understanding – for if we do not know what we have, we will not know what is being taken away. Spread the word. Let’s get as many Americans to join us as we discover the thesis of our great land – to preserve it we must observe it.

God Bless,

Janine Turner

Tuesday, May 11th, 2010

March 6, 2011/7 Comments/by Janine Turner and Cathy Gillespie

May 11, 2010 – Federalist No. 10 – Cathy Gillespie

Federalist Paper 10, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 10, Federalist No. 10, Federalist No. 51

Tuesday, May 11th, 2010

It’s been exciting to see so many blog participants today! A big thank you to those who are with us every day, and an enthusiastic welcome to some of our newer folks! Each of you brings a unique and valuable perspective to these pieces. The larger the group we hear from, the more complete and “whole” our understanding becomes!

I was fascinated by the descriptions of factions in human nature, with faction defined as a group, majority or minority, united by a common passion or interest “adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Knowing we can’t control the cause of these factions, the founders set out to control the effects.

Madison argues that a republic is more effective than a democracy in controlling the effects of factions. I would bet that most citizens today cannot explain the difference between a republic and a democracy. Federalist No. 10 not only explains the difference, but outlines the reasons why a Republic is more effective than a Democracy in representing the broad interests of the community and Nation.

I loved this sentence: “A rage for paper money, for an abolition of debts, for an equal distribution 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.”

Madison saw “an equal distribution of property” as “improper and wicked.” There is a moral case to be made for allowing the spirit of free enterprise to reign in our society. Men possess different abilities, and their “diverse faculties” produce different classes of property owners. A republic balances the interests of these different classes.

Finally, towards the end of Federalist No. 10, a sentence that made me smile: “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.” It is interesting to see that over 200 years ago, they still had problems with “dirty tricks,” in campaigns!

Thank you again to everyone for your insights today!!

Cathy Gillespie

3 Responses to “May 11, 2010 – Federalist No. 10 – Cathy Gillespie”

Dave says:

May 12, 2010 at 7:02 pm

Cathy, you commented on Madison’s acknowledgment that men by nature possess a diversity of faculties. But, what almost jumped off the page for me was the next sentence–”The protection of these faculties is the first object of government.” This idea is similar to what Jefferson wrote in the second paragraph of the Declaration of Independence telling us that governments are instituted among men to secure our unalienable rights. Our diverse faculties are such an integral part of who we are that they are probably as unalienable as life, liberty and the pursuit of happiness. One can come to a paradoxical conclusion that when individuals with diverse faculties, situated differently in time and space, are truly free, the result is a whole lot of inequality–that’s material inequality not political inequality. So a necessary corollary of liberty is inequality and it then follows that a prime function of government is actually to protect inequality. Of course in the long run, society is better off if individuals are allowed to flourish using the unique faculties with which they have been endowed. This is a problem today in an era of identity politics, the politics of envy and class warfare–individuals can’t be allowed to flourish.

It is clear to me that the Founders conceived of government, properly structured, as a means of protecting us from one another. The modern conception of government for most Americans is diametrically opposed to the Founders’ conception. Today, we have some Americans using government to invade the property rights and impair the faculties of other Americans. Government today is seen as a provider government; a government that will provide not only the bare necessities, but also a house, a job with a certain pay level, medical care, a car, internet, a cell phone and, most recently, appliances. And what most people fail to realize, or they do realize and just don’t care, is that before the government can provide anything to anyone it must first take resources or labor from some other citizens. So now we have an ever-growing segment of our population who wish to obtain for themselves through the force of government that which they refuse to provide for themselves by tapping into that quintessential American trait of an “unequaled spirit of enterprise.” The Founders no doubt were familiar with the fundamental law of economics that says, “Man tends always to satisfy his needs and desires through the least possible effort.” If it’s easier to get something through political means using coercion than through economic means using voluntary contracts and transactions, then men lacking virtue won’t waste any time to start organizing to gain control the political process with the singular aim of redistribution.
Susan Craig says:

May 13, 2010 at 1:57 pm

Ah yes another prime example of the hubris of man. Man thinks that he can equalize and homogenize what GOD has created as diverse and interesting. This ranks right up there with the belief that puny man could possibly destroy anything as complex and wonderful as the climate of the earth. Yes we can soil to uninhabitability our own particular corner but on a global scale not so much.
The Glenn Beck Review says:

July 14, 2010 at 12:32 pm

Madison also saw large corporations as an evil. so the “moral case to be made for allowing the spirit of free enterprise to reign in our society” was not as cut and dry as Libertarians make it seem. Madison wrote that “there is an evil which ought to be guarded agst in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations. The power of all corporations, ought to be limited in this respect” – – James Madison, Detached Memoranda, circa 1817

This pretty much contradicts the “moral case to be made” in favor of a progressive case for trust busting and legislating against “too big to fail.”

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 10 – The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection, From the New York Packet (Madison)

Federalist Paper 10, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 51, Joerg W. Knipprath

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying. The central theme, “republicanism,” carries over from its predecessor. At the core of classic republicanism, going back to the ancient Greek and Roman writers, lies “virtue.” Aristotle, Polybius, and Cicero, among others, saw an essential connection between personal (private) virtue and civic (public) virtue. This was, for most Americans, especially those drawn from Calvinist stock, one of those self-evident truths. An interesting statement of the preconditions for virtue is in the great Northwest Ordinance of 1787: “Religion, morality, and knowledge, being necessary to good government and the happiness [in the Greek sense of personal flourishing as a human being] of mankind, schools and the means of education shall forever be encouraged.,” sentiments expressed almost identically by George Washington in his remarkable farewell address.

Writers on ideal republican systems that emphasized virtue were not faced with the task of constituting an actual working government. One of the asserted practical defects of republics and, worse, democracies, has been their political turbulence. Ever since Plato, Western political theory has emphasized the very practical need that government first and foremost ensure political stability. To that end, every political system must have a symbol or ideal around which to rally, something or someone that can bridge the inevitable tensions that arise among competing personal interests. In the English constitution, that symbol was the crown, and American writers in the 1780s worried about what the absence of a king might mean for the long-term stability of the United States. The political and economic turmoil that was endemic in many of the states was less than reassuring. In the United States, that common ideal was the promotion of republican virtue. Today, some would say, it is the Constitution.

The self-interested part of human nature was called the spirit of party or, more commonly, “faction.” Its effect is to undermine republican virtue, which demands sacrifice of the self or the group for the benefit of the whole. Faction is the anti-matter of classic republicanism The history of the early American republic, including Jefferson’s inauguration speech in 1801, almost wholly revolves around coming to terms with the reality of faction in a system that claimed to rest on republican virtue. Today, politicians still often appeal to bi- or non-partisanship as a republican value and libel their critics’ opposition as un-American selfishness. Truth be told, people love partisanship and engage in full-throated defense of their interests, and politicians quickly change their tune when their own oxen are gored.

Madison shrewdly exploits that. He writes that there are two ways to deal with faction: Address its causes or its effects. The first is impossible, as it would necessitate addressing the root cause of faction, fallen human nature. That is totalitarian, in that it requires remaking human nature by equalizing personal talents and possessions. Such a cure would be a destruction of liberty worse than the disease. Moreover, it actually would go against the duty of government to protect the natural inequalities of persons. We may all be created equal in the eyes of God or enjoy metaphysical equality, but we are not in fact all created equal in talent. Human society will always reflect inequalities in talent and differences of opinion, and we need to deal with the realities of human nature, not with pie-in-the-sky proposals to remake humans. Is anyone in D.C. listening?

He proposes instead to deal with the effects of faction. He sets out the danger of democratic systems, such as ancient Athens, where the ability of people to communicate with each other within a homogeneous and geographically confined polity allows permanent majority factions to appear that oppress minorities. Those endangered minorities are political and religious dissenters and the propertied classes. In fact, he singles out taxation as a tool particularly susceptible of abuse against them. Does this sound familiar at all? The opposite danger could also appear, in oligarchies, where a permanent minority faction might oppress the majority. The key, then, is to prevent both of these permanent conditions. Like Plato and Aristotle, among others, Madison sees both oligarchy and democracy as corrupt political forms. Like many of them, he proposes something he calls a “republic.”

The danger of oligarchy is mitigated by the republican principle of the vote. Easy enough. More difficult is the danger of unadulterated democracy. It is worthwhile to re-read his mellifluous and powerfully concise indictment of such a system in the paragraph that begins, “From this view of the subject….” The control, though not cure, for that ill is the element of deliberation introduced through the republican principle of representation. By itself that is still not enough, as small republics suffer from similar defects as democracies. The second crucial element to forestall oppressive permanent majorities is the large size of the American republic with its large and diverse citizenry. That lessens the dangers of popular passions easily communicated and organized to oppress the minority.

Madison cleverly turns the arguments of his opponents against them. Among Antifederalists, it was almost an article of political faith that a government for a large dominion inevitably becomes oppressive. Not content merely to defend the Constitution and the increased power of the national government against charges that the new system threatens liberty, Madison goes on rhetorical offensive against the political instability found in states with which his contemporaries were all too familiar. In a hard-hitting paragraph near the end (“The influence of factious leaders….”), he argues that the central government is less dangerous than states or localities. It is noteworthy what he perceives to be the bad results from too much democracy: “[A] rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project….”

Ingenious as his control of faction is by embracing its reality while blunting its worst manifestations (an issue to which he returns in Federalist 51), is he still right today? Certainly there are big variations in dominant popular political opinions between states or even within states. Though the contrast is becoming paler, there still is greater political homogeneity within particular localities than among Americans as a whole. On the flip side, mass communication and personal mobility, along with a weakening of intermediary institutions, make even our national system much more like the participatory or plebiscitary democracies about which Madison warned. Moreover, the central government, through means to be addressed in future papers, has taken on some of the very characteristics the Antifederalists feared. If that is the case, isn’t local control (and the ability to vote with one’s feet) more conducive to personal liberty than top-down central government from which there is no escape?

Monday, May 10th, 2010

20 Responses to “May 11, 2010 – Federalist No. 10 – The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection, From the New York Packet (Madison) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”

Susan Craig says:

May 11, 2010 at 8:04 am

Wow! In my note taking for this paper, I found it hard not just to copy the whole thing! But the portions that hit the hardest were: “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:”

AND

“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.”
Maggie says:

May 11, 2010 at 8:41 am

Excellent interpretation! You have clearly explained the very “soul” of this paper….I really have nothing to add. Thank you again for your time and willingness to help all of us learn more about our founding and the great men who were inspired to give us our Republic. Now let’s hope that it’s not too late to keep it.
Carolyn Attaway says:

May 11, 2010 at 9:04 am

I wish we could have had this Federalist Paper assignment over a weekend; there was so much in it that my thought process was constantly racing from one end of the spectrum to the other. I had to read this paper several times in order to take in all the ideas of information.

For me, the main theme in this paper was the statement “There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.”

Prof. Knipprath goes in great detail explaining the methods of removing factions, and the example he used regarding the differences in human talent spoke to me best.

For years, I have told my children that everyone should be guaranteed an equal opportunity in life, but no one is guaranteed equal outcome. There are too many factors is life to make equal outcome impossible, no matter what any politician tells you. The factors that direct a person’s life are limitless and cannot be controlled.

The following statement by Prof. Knipprath hit the nail on head as to why I believe many societies fail: ‘We may all be created equal in the eyes of God or enjoy metaphysical equality, but we are not in fact all created equal in talent. Human society will always reflect inequalities in talent and differences of opinion, and we need to deal with the realities of human nature, not with pie-in-the-sky proposals to remake humans.’

I have heard it said that if you take all the wealth in the country and evenly distribute it among that country’s citizens, within a generation or two, the majority of the wealth will be back to its original distribution. Why? Because the spirit of the entrepreneur will always rise to the surface to better the situation around him. That spirit is always dissatisfied with the status quo.

Sadly, many in our government believe in equal outcome, and have convinced a large portion of our country that this process is not only doable but sustainable. Both I believe to be false statements, and a major cause of faction in our country today.

My humor statement of the day in this paper, “Enlightened statesmen will not always be at the helm”. Oh, if only I had time to debate this!
Carol Frenier says:

May 11, 2010 at 9:41 am

In the 1970s I taught American History in high school. I remember that Federal #10 was viewed as one of the cornerstones of the Federalist papers in the eyes of many historians, but it took me 65 years of living to see why. Quite simply #10 explains in the most realistic terms how people relate to their government: they form factions to get what they want.

Madison’s definition of factions and its causes, plus his conclusion that removing the causes would essentially destroy liberty, are intriguing. But even more interesting to me is this passage which sums up the whole situation.

“The diversity in the faculties of men, from which the rights of property originate, is…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 sentiments and views of respective proprietors ensures a division of the society into different interests and parties.”

The idea that it is the duty of government to protect the inherently different capacities in people is well worth pondering. Liberals and conservatives would probably react to this very differently. Many liberals might grudgingly concede that inherent differences are a reality, but they might also find it appalling—something for Progressives to alter via government action. Conservatives would more likely find it appalling that liberals would think this reality is something that could be changed, sort of like defying gravity. They would likely support the protection of such differences as the ground upon which people thrive and create.

Wanting people to be free to use their inherent capacities (and wanting to protect the fruits of their labor) is not the same thing as being indifferent to the suffering of those in need, but it is often interpreted that way. The distinction between these two ideas is important for conservatives to get across to the electorate in November. We are, it seems to me, at a crossroads between reaffirming the protection of liberty as the bedrock of our political tradition or moving toward a nanny state in which differences of ability—and the creativity that results from those differences—are minimized and group identity and grievances are emphasized.

As we debate these two political courses—often rancorously—we are ourselves caught up in factions. Can we calm the debate and minimize our different views by focusing on the values and principles that we all do agree on? How, for example, is the best way to integrate the ideas of liberty and fairness? Or liberty and compassion? What specific policies would contain good compromises between these competing passions and interests?
Susan Craig says:

May 11, 2010 at 10:24 am

What I am trying to figure out is the inclination of utopians is that they can legislate a change in human nature. It strikes me as absurd as trying to legislate gravity out of existence because I don’t want the pain caused when I fall down.
Roger Jett says:

May 11, 2010 at 10:54 am

In “Federalist Paper 10″, Madison lifts the veil to reveal what fearful impact “the reality of faction” has on any system were liberty receives value. Liberty requires breath, but Madison points out succinctly that the same air that gives us breath fuels the fire of factionalism. Professor Knipprath has been succinct also as he has expounded insightfully upon the issues raised. Madison in this writing, loaded the bases for our team and you sir have drilled it out of the park. I wonder to if “anyone in D.C. is listening?”.
Kay says:

May 11, 2010 at 11:02 am

This Paper #10 was by far the most exciting, probably because I see so much happening today mirrored in Madison’s reasoning. What were the particular factions existing in the time of the Constitution, and which Madison may have had in mind?
“Liberty is to faction, what air is to fire,” seems to say there will always be issues of passionate viewpoint. Republican virtue would hopefully rise to the top if, a big if, office holders possess virtue. For those whose mantra is equality in every way, didn’t they ever tell their children that sometimes life is not fair? Also, what came to mind after reading: “But the most common and durable source of factions has been the various and unequal distribution of property,” was the parable Christ told about the talents and how some capitalized on their talent, and how one of them did nothing with it. To me, that exemplifies human nature and spirit…how they move and work in their own domains. Governments can try to “equalize” everyone and our possessions, but as in the Soviet’s days, a greyness, dampness will occur over the people.
Thank you again for the Professor Knipprath’s commentary and all the bloggers, who are adding day by day to my meager understanding!
Maggie says:

May 11, 2010 at 12:35 pm

@ Kay….you said it perfectly when you stated “To me, that exemplifies human nature and spirit…how they move and work in their own domains.” It makes me think of “No Child Left Behind”. We educate all of our children in this country, but not all people have the same capacity for learning. We now spend more time trying to prop up those people who, sometimes, just aren’t going to get it while neglecting those who could be our future leaders. The brilliant minds of our youth are being held back to the lowest common denominator in the classroom. Sure, I think that those that are falling behind may benefit from extra help but not to the detriment of the rest of the class. The same goes for the business world. We can’t expect EVERYONE to be a great success…..we don’t all have what it takes. Trying to change that is a waste of time, effort and expenditures.
Ron Meier says:

May 11, 2010 at 2:06 pm

This struck me most: “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. We well know that neither moral nor religious motives can be relied on as an adequate control.”

This is what happens when one party controls both houses of Congress and the Presidency, which is what we have in 2010. The faction includes the executive and legislative branches, which are controlled by one party. In spite of the opposition of the majority of citizens, the majority faction controlling two branches of government was able to pass the health care law, which was based solely on ideological passion and not on what was best for the public good.
Andy Sparks says:

May 11, 2010 at 2:58 pm

Professor Knipprath, thank you for the excellent essay on the Federalist 10 written by the foremost political mind of the founding generation. I find it interesting and appropriate that you reference the passage from the NW Ordinance (which was devised by the government under the Articles by the way) and relate it to George Washington’s farewell address. Realization of the comparison is evident given that James Madison initially wrote and Alexander Hamilton revised Washington’s farewell address. While the two primary authors of the Federalist essays eventually diverged on how government should be run under the Constitution, they are remarkably consistent on the reasons necessitating the Constitution at its inception.
Susan Craig says:

May 11, 2010 at 3:46 pm

From readings I’m doing it appears that the Articles weren’t all that ineffective. Where it ran into difficulty was in the unanimous requirement for amendment and raising of revenue. I would like to know the reasoning behind Rhode Island’s obstructionist votes during this period. Each time amendments were brought forward under the Articles of Confederation Rhode Island was the lone state not to ratify and as there was a unanimous requirement they all went down to defeat.
Susan Craig says:

May 11, 2010 at 3:47 pm

They also were the lone State to initially not send delegates to the Constitutional Convention.
Quillhill says:

May 11, 2010 at 6:31 pm

Is the recent and current path of our federal government proving the Anti-Federalists correct?
Joerg Knipprath says:

May 11, 2010 at 7:06 pm

As usual, the quality of the comments is so impressive. A “thank you” also for the gracious responses to the blog post.
Federalist 10 is in the top handful of the papers in insight and importance. It combines political theory with a clear-eyed view of political reality and how institutions work, as historical experience tells those who only have the will to listen.
I was intrigued by s.th. Susan wrote, a point that probably will come up again in future discussions. Adoption of the Constitution was probably not as essential at that time as Publius makes it out to be. The main drawback of the Articles was, indeed, the difficulty of amendment. There were serious efforts to amend the Articles at least into 1786, and discussions even into 1787. The earlier efforts focused on getting Congress some independent revenue-raising power, at least as to import duties (s.th. that the King had had under his sovereign prerogative for a long time). Some focused on getting some kind of military power to force recalcitrant states to pay their obligations. Later efforts focused on finance, as well, but just as significantly, on a power to regulate foreign and interstate commerce. That would have superseded the Congress’s limited ability under the Articles only to arbitrate commercial disputes upon demand by the states.
As to “Rogue’s Island,” as it was often known, there are two broad explanations, one high-toned, the other not so much. R.I. had a long democratic (for the time) tradition, with a royal charter that basically remained the state’s constitution into the 1840s (when a mildly violent “civil war” addressed the desire for reform) and protected civil liberties and voting rights. The state distrusted the federal government as an invitation to tyranny, exactly the kind of concern Fed 10 tries to assuage.
The less honorable interpretation is that R.I. was a strong “debtor” state that had engaged in all kinds of chicanery regarding its public and private debts. Moreover, it was a state that had acquired quite a reputation for sharp commercial dealings. It relied on heavily on fishing and international commerce (including the slave trade), including smuggling. If a strong central government emerged, the state’s inflationary loose money policies, as well as its independent commercial course would be subject to control. The state had all those characteristics that Fed. 10 assigns to the most turbulent of small democratic states (“A rage for paper money, etc.”).
Its convention voted 34-32 in 1790, after years during which no convention had been permitted to meet because the Constitution had lost in a popular advisory vote. The convention was called because the Bill of Rights had been proposed and because of threatened sanctions from other states (from taxing R.I. products as imports from a foreign country to using military force to quarantine or invade the place). “It’s not the size of the dog in the fight, but the size of the fight in the dog.”
Lynne Newcomer says:

May 11, 2010 at 8:29 pm

Everybody… thank you for your input. What I got from this reading is that we have been straying from the bed rock principles of human nature for some time now.It has us all caught up in a make believe world to some extent.Examples that come to mind,…the trophy generation children are being indoctrinated with this idea…..teachers not marking papers with red ink because some will “feel” bad, of course this was never the original intention of red ink. Raising children taught me many things ,among them was that each child was different an individual, they all had my love and attention but they all needed guidence in different area .Government needs to be there but mostly needs to get out of the way of the people,we can handle our own lives and resent intrusion , manipulation and trying to make us all something that someone else fancies is always a bad idea.,We are what we are and our founders understood the condition of man quiet well.
Susan Craig says:

May 11, 2010 at 9:08 pm

Thank you, Prof. Knipprath (how do you pronounce that?). As a history fan it has been a head scratcher for me. I’ll wager things were quite lively in RI for a while.
Constituting America says:

May 11, 2010 at 10:29 pm

It’s been exciting to see so many blog participants today! A big thank you to those who are with us every day, and an enthusiastic welcome to some of our newer folks! Each of you brings a unique and valuable perspective to these pieces. The larger the group we hear from, the more complete and “whole” our understanding becomes!

I was fascinated by the descriptions of factions in human nature, with faction defined as a group, majority or minority, united by a common passion or interest “adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Knowing we can’t control the cause of these factions, the founders set out to control the effects.

Madison argues that a republic is more effective than a democracy in controlling the effects of factions. I would bet that most citizens today cannot explain the difference between a republic and a democracy. Federalist No. 10 not only explains the difference, but outlines the reasons why a Republic is more effective than a Democracy in representing the broad interests of the community and Nation.

I loved this sentence: “A rage for paper money, for an abolition of debts, for an equal distribution 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.”

Madison saw “an equal distribution of property” as “improper and wicked.” There is a moral case to be made for allowing the spirit of free enterprise to reign in our society. Men possess different abilities, and their “diverse faculties” produce different classes of property owners. A republic balances the interests of these different classes.

Finally, towards the end of Federalist No. 10, a sentence that made me smile: “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.” It is interesting to see that over 200 years ago, they still had problems with “dirty tricks,” in campaigns!

Thank you again to everyone for your insights today!!

Cathy Gillespie
Constituting America says:

May 11, 2010 at 10:49 pm

Brilliant. Brilliant. Brilliant. Mesmerizing. I agree with Professor Knipprath words, “Federalist No. 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying.”

Well said, Professor Knipprath and your essay today is quite brilliant, too, and thought provoking, as well. I thank you for your devotion to “Constituting America” and for all of your esteemed guidance.

I thank all of you who have blogged with us today and for your stimulating dialogue.

There is so much wonder, scope, knowledge, perspective and vision in this paper that I do not even know where to begin. I do believe I may have to meditate upon it before I can give it the respect it deserves.

What am I learning is the difference between a democracy and a republic and through these papers, and this paper in particular, I am getting a clear vision about why we are a republic. Passions, individual perspectives and political factions breathe life into liberty but they must be channeled and curbed. The answers to this challenge lie in our representative form of government.

To quote James Madison:

“Liberty is to faction, what air is to fire, an aliment, without which it instantly expires”

I am sharpening my insights regarding Republican virtues. These virtues deserve to be studied in school and taught in the home. We, as citizens, would be wise to delve into the psyche of the Revolutionary patriots, imbue their sense of virtue and wear their armor of valor. Ah, to breath the air they breathed, to feel the electricity they felt – the enlightment, the courage, the inspiration, the determination.

Knowledge is power. How fabulous that we are on this journey, this path of understanding – for if we do not know what we have, we will not know what is being taken away. Spread the word. Let’s get as many Americans to join us as we discover the thesis of our great land – to preserve it we must observe it.

God Bless,

Janine Turner
May 11, 2010
Carolyn Merritt says:

May 11, 2010 at 11:21 pm

I found #10 to be an exciting read. It was like reading the blueprint for today’s political atmosphere. In his first paragraph where he states “…that the public good is disregarded in the conflicts of rival parties; and that measures are too often divided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and over-bearing party.” This brings to my mind the current steamrolling of health care, bailouts, etc., without regard for the majority of citizens’ voicing their opposition.
Joe Drum says:

May 14, 2010 at 8:40 am

Wow, these are the kind of insights I was hoping to find when I came to this site. Thanks Janine and Cathy and can we hear more from Professor Knipprath?

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 12, 2010 – Federalist No. 11 – Cathy Gillespie

Federalist Paper 11, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Article I, Federalist No. 11, Federalist No. 11

Thursday, May 13th, 2010

You all are kicking up some dust in the comments today! I love the back and forth.

And thank you to Dr. Postell for your essay! We appreciate your participation and guidance.

Thank you also to Constituting America’s founder and co-chair Janine Turner for her brilliant essay, published early today! I am burning the midnight oil.

I begin tonight with these sentences, the first sentences of Federalist No. 11:

“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.”

The above quote reflects another area in which the founding fathers showed great insight, wisdom and vision. Today, African countries are suffering economically from the tariffs and entry fees they impose on each other. European countries suffered as well. Only recently have they unified economically, learning from our example. And some see a political unification of Europe as a likely next step. The founders saw the necessity of economic unity, and acted on it, over 200 years before Europe came to the same conclusion.

It is fascinating to me that in the early stages of our country, the founders could so clearly discern “the adventurous spirit, which distinguishes the commercial character of America,” and recognize that “the unequaled spirit of enterprise…..is itself an inexhaustible mine of national wealth.”

The power of Congress “to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes,” found in Article 1, Section 8 of the Constitution, certainly propelled our country to its preeminent world economic leadership position. The Commerce Clause allows the United States to present a unified economic front to the world, and for individual states to not penalize each other. But the Commerce Clause has been a double edged sword. When utilized to keep markets free and unfettered, it allows our Nation to soar, tapping into that uniquely American “unequaled spirit of enterprise.” But when the Commerce Clause is utilized to regulate and stifle the spirit of enterprise, it can “clip the wings by which we might soar.”

The current health care reform legislation stretches the Commerce Clause further than it has ever been stretched before. Instead of regulating economic activity between the states, Congress is using its power to mandate that people pro-actively make purchases from private sector companies. I wonder what Mr. Hamilton would think of the federal government’s intervention into that type of “commercial relations.”

Tim W. said it especially well in his post today, “It was refreshing to see Hamilton cast commerce as a virtue, rather than the vice portrayed by some in power and in the larger information media.” The founders recognized that the most valuable natural resource of the United States is its people ,their “adventurous spirt,” and “unequaled spirit of enterprise.”

Thank you to all of you who are joining us in shining a light on the founding principles of our country, so that they may once again be our guide. Please continue to spread the word, and invite your friends to read and blog with us.

On to Federalist No. 12!

Good night and God Bless,

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

May 12, 2010 – Federalist No. 11 – Janine Turner

Federalist Paper 11, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 11, Federalist No. 11

Wednesday, May 12th, 2010

Well, I had great fun reading Alexander Hamilton’s Federalist Paper No. 11, especially toward the end of the paper, where he makes a statement regarding Europe:

“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 a while in our atmosphere…. 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 add another victim to his triumphs.”

This statement, once again, exhibits the vision of our Constitutional founding fathers and Publius; strength in numbers, success with unity. They envisioned a United States that could, with her richness, vastness, intellect, unsurpassed spirit of enterprise, and republican virtue compete with Europe and do so with dignity and in a way that would, “vindicate the honor of the human race.”

Other points that I found to be of interest were regarding a strong and unified navy. “The rights of neutrality will only be respected, when they are defended by adequate power. A nation, despicable by its weakness, forfeits even the privilege of being neutral.”

This statement is relevant today and is applicable to our current situation regarding 9/11 and terrorism. It is, also, represented by human nature. Bullies only attack the weak. Other nations watch our administration and our country’s stance on defense. If they sense any leniency, or lack of response to attacks on American soil, which is “despicable by its weakness,” then we, as Americans forfeit our privilege of being neutral. Peace is no longer an option for us if we do not exhibit and execute strength – strength politically (a congress that thinks in terms of what is best for America and not factiously), militarily, (readiness and response), and financially (solvency). Strength, also, lay in our resources – our own oil and advances in new fuels.

It is best illustrated by Alexander Hamilton’s own words regarding unity and strength:

“The unequalled 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.”

As a final note of relevancy – the many mentions of the phrase, “spirit of enterprise” in the Federalist Papers, in this case, “unequalled spirit of enterprise.” America was built on this spirit – a can do, true grit American determination. The greatness of America will cease with the continuance of a “nanny state.” America was not built with her hand out. America was built with her hands at work.

God Bless,

Janine Turner

5 Responses to “May 12, 2010 – Federalist No. 11 – Janine Turner”

Billy Statkiewicz says:

May 12, 2010 at 6:49 pm

Janine i think this is a great thing you are doing with this Blog on the Constitution.

I loved your character on Northern Exposure and any one who has ever watched the show would realize that with hard work , determination and will. You can accomplish great things in the harshest of conditions.

I dont know what has happened to America over the last 25 years or so but it has to change quick. We as a nation cannot go on in the direction that we are headed. This nanny state and its ideologues behind it will forever injure this once great Nation.

As someone in his mid forties , i remember on Flag day in 1976 at my grade school ” South School” in Stoughton, Massachusetts. I read the entire Gettysburgh address to a packed lawn of k-6 graders and all of the parents that could attend , including my mother Mary. She and i were never so proud as to what i accomplished that day, with such a beautiful Speech written by a great american and Former President. Abraham Lincoln.

As much as i like President Obama , i dont agree with a large , MANY of his Policies to date, and i also dont believe someone like himself who has read and studied this great man as i have ,Obama doesnt have Lincolns spirit at heart in his policies. I Think Abe would be quite upset with him if he was alive today. I believe he would even go back to the Cooper Union to give another speech against many of Obamas policies.

Giving Speeches at the places of your idols , does not make you a great President .Obama should consider forging his own History with reasonable policy , that the majority of Americans are behind.

This is a troubling time we live in , and i hope it changes soon. I have met President Clinton and spoken to him. I live my life on the road less traveled and have experienced meeting many great people. I do this because i believe in my country and the path that Great Americans have forged for us in this Nation .

We can only continue when our leaders have a genuine true interest in their hearts and intellect for this Great Nation .

With the help from you and others i have faith that our path will be Righted soon enough.

Janine Keep up the great work and i hope everybody loves to read the History that you have set for us. As much as i have.

Remembering back on Flag Day in 1976 , i cant believe students were suspended for wearing a tee shirt displaying our Precious Flag. The one where brave young men and woman for hundreds of years have shed their precious blood and given up their lives for the country they were taught to believe in and the country i am sure they believed in.

God Bless you and this great nation

William Statkiewicz
Stoughton, Massachusetts.
Lynne Newcomer says:

May 12, 2010 at 7:41 pm

Truely ….. I am past being concerned about the current direction of my beloved country.I am overwhelmed and actually fearfull that it is moving so fast that we may not be able to reverse the damage of this Administration coupled with the inertia of these past 20 or 30 years has done. These words of our founding fathers are so inspiring. I am thrilled to read them.
Susan Craig says:

May 12, 2010 at 7:44 pm

You said: “America was not built with her hand out. America was built with her hands at work.”
To that I say: AMEN!
Jeff Hill says:

May 12, 2010 at 8:52 pm

Your fifth paragraph states our situation accurately and concisely.
Jocelyn White says:

May 13, 2010 at 12:17 pm

Janine, I really enjoyed your essay on Hamilton’s paper. The line that grabbed me by the throat? Bullies pick on the weak. I am not by any means a “Hawk” but I do believe our country’s strong Defense is our best Offense. And I think it is shocking the way we don’t support our military monetarily, spiritually, emotionally and physically. It was also interesting to note in today’s news that former astronauts and moonwalkers Neal Armstrong and Gene Cernin are wholeheartedly AGAINST the Obama adminstration’s proposals for our space program. They warn that if that program proceeds, we will lose our place in the space race. And this is about much more than further moon landings and Mars expeditions. Think of satellites, space stations, etc. Were our Founding Fathers seers? Did they have crystal balls much more clear than ours? Sometimes, reading these papers, it would seem so.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 11 – The Utility of the Union in Respect to Commercial Relations and a Navy, for the Independent Journal (Hamilton) – Guest Blogger: Dr. Joe Postell, Assistant Director of the Center for American Studies, the Heritage Foundation

Federalist Paper 11, Federalist Paper Forum 2010 Essay Project, Joseph Postell, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 11, Joseph Postell PhD

Wednesday, May 12th, 2010

Federalist #11

Over the past century, as America has become more involved in world affairs, many are wondering what the Founders would have said about such a trend. Federalist #11 gives us a glimpse of how the Founders approached questions of international politics. What we see is that the Founders were neither isolationists nor internationalists. Their approach was to put America’s security and interests first, and to preserve American sovereignty and self-determination, but to adopt an active role in the world in order to achieve that end.

The 11^th essay is part of a series (running from Federalist 2 through 14) on preserving the Union. The 11^th essay argues that preserving the Union will make the country stronger in its commerce with foreign nations. Alexander Hamilton, writing as Publius, explains that European nations are jealous of America, because America will eventually be strong enough to prevent Europe from colonizing the Western Hemisphere. (We see the roots of the Monroe Doctrine already in this essay.) The nations of Europe “look forward, to what this country is capable of becoming, with painful solicitude.” Publius predicts that the European countries will try to weaken and undermine the fledgling country. If the country is not unified, these attempts will be more effective.

But by remaining unified, Publius argues, America can gain the upper hand over Europe. By gaining strength, America can make its own policy as a fully independent nation rather than follow the dictates of Europe. With its combined strength, America could enact regulations preventing countries from trading in its markets, thus leading them to adopt a friendlier stance towards American merchants.

Furthermore, a unified America could build a dominant navy. This navy would protect America from attack, but more importantly, it would also allow America to receive equal and fair terms of trade, throwing its naval support “into the scale of either of two contending parties” in Europe. America could use its navy to ensure independence, demanding equal treatment as a nation equal in standing to those of Europe. Hamilton writes that “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.”

A weak nation becomes the servant of stronger countries, and unity is the key to building American strength. Hamilton goes so far as to say that America “might make herself the admiration and envy of the world” by adopting the right policies. Alternatively, if union is abandoned, other countries would be able “to prescribe the conditions of our political existence.”

Hamilton looks to the future, envisioning the eventual position of America as a strong country which serves as an example of liberty to the world. He goes so far as to write that we should “aim at an ascendant in the system of American affairs.” Through Union America will “be able to dictate the terms of the connection between the old and the new world.”

But in contrast to nations which use their strength for self-aggrandizement, America can use its standing in the world to protect the sovereignty and independence of nations from European interference. The Founders were not isolationists, yet they did believe that their principles put strong limits on what they could do in international affairs. Their principles required that military power be used to defend American sovereignty, but defending sovereignty requires respecting the sovereignty of other countries.

In this essay, we see that Hamilton and his readers were not opposed to American involvement in world affairs. But they did not think that the purpose of foreign policy was not to go on a crusade for liberty around the world. Rather, they sought to be involved in world affairs in order to secure their independence.

Counter intuitively, the Founders believed that the only way to be independent of the entangling affairs of other nations was to be active in the world. Only by asserting itself on the world stage could America become strong enough to dictate its own affairs in the pursuit of its interests. If America isolated itself, the Founders believed, it would be placing itself in a position of weakness and disadvantage.

The wisdom of the Framers is especially relevant today, when Americans are concerned about becoming the “world policeman” yet wish to avoid isolating themselves from the rest of the world. The Founders’ principles of security and respect for the sovereignty of other nations provide a middle ground between isolationism and internationalism.

Dr. Joe Postell is Assistant Director of the Center for American Studies at the Heritage Foundation heritage.org

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 12 – Cathy Gillespie

Federalist Paper 12, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Article I, Constitutional Amendment XVI, Federalist No. 12, Federalist No. 12

Friday, May 14th, 2010

Federalist Number 12

Thank you to Dr. Paul Teller for your insightful post today, and to Dr. Joe Postell for your enlightening post yesterday! We are blessed to have Constitutional scholars such as yourselves helping us on our journey through the Federalist Papers! And thank you to everyone who continues to comment, and share your thoughts! I am learning so much from each of you.

“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.”

Taxes. No one like them. Since biblical times the tax collector has been seen as one of the most despised members of society.

Taxes sparked the American Revolution. It is in our heritage to resent taxes, especially when we feel we have little or no say in how the money is being spent!

Yet, Alexander Hamilton, in Federalist No. 12 makes an argument we may not like to hear – taxes are necessary. We must find ways to fund the government :

“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.”

The question is how.

It is fascinating to observe the progression of taxation in our country. From the Article I, Section 8 of the United States Constitution:

The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States;

To a federal tax code that is over 7,000,000 words long (thank you to my friend Steve Moore for this fact, cited in a great piece he did for National Review http://article.nationalreview.com/268573/our-income-tax-monstrosity/stephen-moore)

What happened?

In federalist No. 12 Hamilton advocates consumption taxes because they are more fair, people will tolerate them better, and they are easier to collect. There were no assured means of assessing personal property ownership or personal income during this period in our country, and as Hamilton wrote, “because personal assets are difficult to trace, large tax contributions can only be achieved through consumption taxes.”

In three years we will “celebrate” the 100^th anniversary of the income tax, the ratification of the 16^th Amendment to the United States Constitution. It is hard to believe that this complicated, lengthy tax code has been in existence for less than 100 years. The explosion of this code in such a short time shows the tendency of government to grow and intrude into our life and liberty, unless we vigilantly keep it at bay, guarding the boundaries of our freedom.

It was eye opening to read Federalist No. 12, and see that in the early days of the Republic, an income tax was the furthest thing from the founders’ minds. These were men of great vision, and this is one more area where their foresight shines.

If only we had listened to them more closely!

Good night and God Bless!

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 12 – Janine Turner

Federalist Paper 12, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 12, Federalist No. 12

Friday, May 14th, 2010

As I read each day one of the Federalist Papers, my goal is to see the true intention of our Constitutional forefathers and also to see how it is relevant today.

Their wisdom and foresight continue to astound me.

“A prosperous 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.”

A prosperous commerce is the most productive source of national wealth. How is this relevant today? Is America’s prosperous commerce being compromised? When the Federal government becomes a source of income, care and resources, when they seize control of her commerce, American enterprise and inspiration are stigmatized. This stigmatization stifles the prosperity of commerce because citizens lose their motivation and one of their most precious American traits – ingenuity.

“The genius of the people will illy brook the inquisitive and peremptory spirit of excise laws.”

This is very relevant today in regard to businesses being heavily taxed.

And lastly, “A nation cannot long exist without revenue. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province.”

Our debt is surpassing our ability to recover. How long will we be able to survive economically, politically? How will we be able to protect ourselves? When destitute of support will we then resign our independence and sink into the degraded position of, yet again, a province?

These are serious times. Our forefather’s words serve as warnings. They documented it for us in our United States Constitution and the Federalist Papers. They provided the answers. Will we heed their wisdom? To do so we must know about it. We must understand it. Knowledge is power. Spread the word.

God Bless,

Janine Turner

P.S. I thank our fantastic scholar today, Paul S. Teller, and yesterday’s scholar Dr. Joe Postell. How lucky we are to have their insights and educated opinions!

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 12 – The Utility of the Union In Respect to Revenue, from the New York Packet (Hamilton) – Guest Blogger: Paul S. Teller, Ph.D., Executive Director of the RSC

Federalist Paper 12, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Paul S. Teller, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 12, Paul S. Teller PhD

Thursday, May 13th, 2010

In Federalist 12, Hamilton seeks to convince skeptical states that forming a union will increase and regularize a revenue stream. His main argument centers on the assumption that the best source of revenue is the taxation of consumption, particularly consumption from abroad. He takes great effort to dispel any possible advantages to a federal tax on land (since doing so would be “too precarious” and would put America’s agrarian livelihood at risk). Any sort of direct (i.e. income) tax would also be “impracticable” because collection is difficult, hard currency is scarce, and such tax has never generated enough revenue in other places they had already been tried.

So duties was the way to go—and especially “duties on imported articles.” But the problem remained, as Hamilton saw it, that, if each state levied its own duties at varying rates on different products, the likelihood of fraud would go way up. After all, he reasoned, the states were all adjacent to several others, shared a language, enjoyed a long history of interaction already, and were connected by myriad modes of transportation, including rivers and bays. Therefore, “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.”

But a unified system of duties across all states, collected and enforced by the federal government via “a few armed vessels,” would not create such incentives to cheat and would greatly improve the efficient collection of revenue.

But why do we even need revenues? Well, as Hamilton asserts in Federalist 12, “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.” That is, to Hamilton, an independent and consistent revenue stream is necessary for political independence.

To increase the universe of revenue, Hamilton saw only one acceptable path: increase commerce. After all, he argued, “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.” It also increases the quantity of currency in circulation and thus makes the payment of taxes much easier (thereby increasing the “supplies” to the treasury). Plus, and not insignificantly, a growing and varied commerce contributes to the individual—and thus the national—happiness.

So let’s follow the Hamiltonian logic here. To maintain political independence, a nation must have a consistent and increasing revenue stream. A consistent revenue stream best comes from a federal government levying duties on commerce—particularly commerce with foreign nations. An increasing revenue stream comes from expanding commerce. And expanding commerce “multipl[ies] the means of gratification”—or happiness.

Hamilton might find it fascinating that, 223 years after he wrote Federalist 12, some of the themes he addressed in it form the basis of some of today’s most furious debates. For example:

Should the federal government receive an ever-increasing revenue stream? While many Americans regard any increase in revenue to the federal government as a positive development, other Americans regard increasing federal revenues as a guarantor of increasing federal spending on matters less and less constitutional. After all, for example, how could we expect a grossly overweight man to gorge less when more and more food is put in front of him?
Should the federal government levy taxes on commerce with foreign nations? This question is of course at the center of the ongoing debate between free trade and so-called “fair” trade. One would be hard-pressed to find any modern evidence of tariffs and other such duties being a net benefit for either levier or levee.
Should the federal government encourage the expansion of commerce? Here, Hamilton is spot-on. Robust commerce benefits man and nation alike and thus should be positively promoted. Hamilton would be horrified, however, at today’s practice of the government participating in commerce—not just facilitating it.

Regardless of how you feel about these three questions and other issues addressed in Federalist 12, we all can likely agree that Hamilton could never have conceived of the levels of revenues that pour into the federal government today. Over the last forty years, tax revenue has averaged 18% of the Gross Domestic Product, and is projected to increase significantly under a variety of scenarios.

Paul S. Teller, Ph.D. is the Executive Director of the RSC the caucus of House Conservatives

17 Responses to “May 13, 2010 – Federalist No. 12 – The Utility of the Union In Respect to Revenue, from the New YorkPacket (Hamilton) – Guest Blogger: Paul S. Teller, Ph.D., Executive Director of the RSC”

Shannon Castleman says:

May 13, 2010 at 8:06 am

It seems that Hamilton would be a Fair Taqx supporter today, and here is where I base my hypothesis:

1. He writes, “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.” . The Fair Tax would increase commerce and one reason would be that large corporations would move to our shores as they would pay 0% corporate taxes.
2. He mentions the best form of taxing is that which taxes consumptions, not income. He notes that wherever a tax on income had been tried, it had failed. He also points out that efficient collection is difficult, which we all know to be true.

3. He takes great effort to dispel any possible advantages to a federal tax on land (since doing so would be “too precarious” and would put America’s agrarian livelihood at risk). Part of the system we have today is the death tax. This keeps beneficiaries from growing their family wealth.
4. But the problem remained, as Hamilton saw it, that, if each state levied its own duties at varying rates on different products, the likelihood of fraud would go way up. Do we not see this today with all the loopholes in the tax code? People try to wiggle in a “dubious” tax deduction to get a little more back. A one time sales tax paid at the cash register will knock out the fraud 90%.
Susan Craig says:

May 13, 2010 at 8:46 am

If the counter intuitive circumstance could be understood by the general populace that the less you tax and activity there is opportunity for more of that activity to occur yielding more tax revenue. Hamilton seems to have grasped this very well.
Ron Meier says:

May 13, 2010 at 9:19 am

Federalist 12 can take us down many rabbit trails. Obviously, the transition from an agraian society to a commercial and industrial society, overlayed with the increased velocity and quantity of information delivery, has made some assumptions about taxation extinct. Direct taxation is pretty efficient in our country and tariffs are frequently roadblocks to efficient and productive international trade. Commercial regulation was yet to begin, as the Congress was not yet formed.

In 2010, most of us might observe that complex and repressive personal and corporate taxation as well as strangling regulation is making commerce difficult to expand as anticipated by our founders and as necessary today to provide sufficient revenue for all the government redistribution programs. If anything, the Congress seems to be more focused on limiting the ability of commerce to expand as rapidly as required today because they want to shield and protect the public, not from the government, but from risk and uncertainty. Our founders were very willing to accept both risk and uncertainty, as well as unequal outcomes, in exchange for protection from the government’s encroachment on individual liberty. “Security FROM government,” not “security OF government,” was the objective in the late 18th century America.
Paul S. Gillespie says:

May 13, 2010 at 10:04 am

The argument of inefficient collection of direct taxes is as valid today as in the late 18th century. While a very large percentage of American citizens voluntarily submit to paying their direct taxes in a lawful manner, a not insignificant number of people skirt or avoid these taxes altogether. This places a burden on the law abiding citizen as he must not only pay his share, but necessarily shoulder the shortfall of the uncollected taxes of those that enjoy the benefits of our free society but do not contribute to its expense. I think this is a very real cause of discontent and resentment among tax payers.
The “Fair Tax”, much discussed today, would have many advantages over the present system. Primarily it is infinitely fair to all and would bring millions of people into the tax system who pay no taxes today. On the Federal side the cost of tax collection would be significantly reduced and the efficiency of tax collection would improve dramatically. On the commerce side there would be a resulting drop in the cost of goods and services, artificially high because of the added expense companies incur in order to comply with Federal tax law. The chief danger to this system is the temptation to congress to grant exceptions to interest groups in order to “promote the general welfare”.
Would Hamilton agree?
Roger Jett says:

May 13, 2010 at 11:13 am

Ron Meier, I very much liked a lot of what you said in your post concerning “Federal Paper #12″. I especially appreciated your closing remarks, “Our Founders were very willing to accept both risks and uncertainty, as well as unequal outcomes, in exchange for protection from the government’s encroachment on individual liberty”. However, I do have to disagree with one statement which was, “Direct taxation is pretty efficient in our country”. Coming from an accounting background and having had extensive exposure to it, I have to contend that taxation in this country is anything but efficient. I’m retired now and my perspective comes from having worked in the private sector. Nothing is simple about our federal tax code and the system is inefficient beyond all comprehension. Blame the Congress for this. By their smoke and mirror tactics, they have constructed a tax system that is a complete monstrosity. I have nogreat love for the IRS, but I recognize that there are many good people working there under extreme conditions . They are left with the difficult job of carrying out the unseemly tax laws enacted by Congress …. they’re left holding that bag. We the people are encumbered not only by the direct tax burden, but also the substantial cost for compliance.
Maggie says:

May 13, 2010 at 1:43 pm

@ Roger….I couldn’t agree more with our tax code being anything but simple. Even those in charge of overseeing tax law can’t seem to figure it out and pay their taxes. A consumption tax ensures that EVERYONE pays based upon what they use or consume. What does it matter how much money you make if you are not spending it? It is ultimately when you spend it that you impact the economy. It is at this end that it should be taxed….not before. Consume more…pay more. Consume less…pay less. It leaves the end results for each individual in their own hands.
Susan Craig says:

May 13, 2010 at 2:04 pm

Roger, just think of what we’d do to the unemployment numbers if we put all the tax lawyer out of business by virtue of a consumption tax? ooo I shudder to think. No longer wending my way through that impenetrable maze in order to see if I can find another way to lessen the burden just a wee bit.
Shannon Castleman says:

May 13, 2010 at 2:14 pm

I think the Fair Tax would be closest taxation method to what our founders would agree with; or mayb a few large excise taxes on certain items.

1. It would increase the tax base -illegals, toursists, underground income, etc. An increased tax base would mean the economy would be less jolted by a small segment of the population going through economic harship. Today, if there are 100 million income earners, one person out of work is 1/100 millionth of the tax based lost; if 300 million people are paying a sales tax, then one person out of work is only 1/300 millionth of the tax base lost.

2. Definitely fair. We all pay the same % at the register.

3. Harder for the government to pay off their cronies. Today, a tax give away is sent in the form of a line you check off in your 1040 form. That is how segments of society get a tax break. When I get a $10,000 mortgage interest deduction, and I am in the 25% tx bracket, tat is the same thing as the government mailing me a welfare check for $2,500. If it is in the form of a check, I am looked down upon as a leech. If it done through my 1040, I am called a productive member of society. Under the Fair Tax, in order for a politician to decide to raise the sales tax to spend more money on his cronies, we ALL would have our taxes raised at the cash register. This way, the people would be better educated and more informed on the true cost of government.
Dave says:

May 13, 2010 at 3:10 pm

“Revenue . . . must be had at all events.” “[T]he necessities of the State . . . must be satisfied[.]” So the question remains who will bear the public burdens of our constitutional federal republic. As previous generations of children at play knew instinctively, everyone could not ride in the wagon at the same time–everyone, with few exceptions, had to pull their fair share. Again, kids knew what was fair–”you pull for five minutes then I’ll pull for five minutes.” Recently, The Tax Policy Center estimated that 47% of households pay no federal income tax. How come they get to ride in the wagon all the time and never get out and pull?

In No. 12, Hamilton makes a good case for ratification based on the States’ and individuals’ economic self-interest. With a federal tax system, much less revenue would “escape the eye and the hand of the tax-gatherer.” And there would be no need to bear the costs of administering 13 redundant state tax systems.

Okay, so I’m sold on the idea that the new federal government will have a sufficient source of revenue to accomplish its constitutional objects. But I have other concerns: How fairly, equally, or justly does any source of revenue spread the burden over all Americans who benefit from the federal system being advocated? And, what restraints will be in place to keep the general government from spending any and all money it collects, instead of collecting only that amount it needs to accomplish its constitutional responsibilities?

I think the founders and their successors were wrong to concentrate on tariffs. Indirect taxes are stealth taxes and you never really know who’s paying them. “In the 1850′s, the federal government obtained 92% of its revenues from customs duties imposed on goods imported from abroad.” (Weisman, The Great Tax Wars) And the reliance on tariffs led to, in my mind, at least questionable results–a farmer enjoying sugar-sweetened coffee at his local early-american Starbucks would pay more in taxes than someone buying $1,000,000 in bonds. The regressivity or progressivity of any proposed tax system should be transparent and is of course debatable. The amount and sources ofrevenue coming into the federal government has changed dramatically over the last hundred years or so–I just want to know why and has it been to our benefit. “In 1913, nearly half of federal revenues came from customs duties, and almost all the rest came from tobacco and liquor taxes.” (Weisman) Hamilton was way ahead of his time advocating “sin” taxes and luxury (“extravagance”) taxes on “ardent spirits.”

Thank you to everyone at Constituting America for creating this wonderful project. How impressive and awe-inspiring!–To encourage ordinary Americans to study our founding documents. Thanks also to all the contributors. I enjoy reading what you think is important about our great country and where you think we’ve gone wrong and what we can do to get us back on the right track.
Ron Meier says:

May 13, 2010 at 5:01 pm

Although all rational human beings would prefer a “fair tax” or “flat tax,” the probability of getting one is zero. The tax laws long ago ceased being a method for generating the revenue required to run the affairs of the federal government. Instead, the tax law has been the means for Congress to raise revenue to achieve the social and economic outcomes it desires at a particular point of time. It has also been used by the Congress to modify behavior of its citizens and corporations.

There are two types of economic triggers available to the federal government, monetary policy and fiscal policy. Monetary policy is solely under the control of the Federal Reserve; fiscal policy is under the control of the legislative and the executive branches. The legislative branch initiates and passes fiscal policy laws and the President approves or disapproves. Fiscal policy has three elements: (1) government spending management, (2) federal debt management, and (3) taxation. We know that the Congress will not really control government spending; therefore, it needs to have a means by which it can adjust the cash flow required to fund the programs it wants to fund. There are two primary ways it can fund the programs. It can borrow money, thereby increasing the federal debt; there are limits to how much additional federal debt can be sold to investors. This leaves only one remaining way to raise the necessary funds – TAXATION.

If a flat tax or fair tax were to be inititated, Congress would have it’s only real method of modifying behavior and raising money for social engineering taken away from it. Although you and I would love to see this happen, it won’t happen because Congress critters know that the game is over if their only toy is taken away.

By the way, if you’ve been paying attention, Congress knows that it may be reaching the end of its rope with respectto its ability to keep increasing taxes, so it has used the current economic crisis to attempt to extend the reach of its powers to control monetary policy by making the Federal Reserve subject to its review. That sounds pretty benign, and like a good idea on the surface, but it is nothing but a first baby step to get its fingers in the monetary policy pie; once it gets a pinky in, the hand will follow. It’s important that we don’t let them get any control over the Federal Reserve’s Monetary Policy toolbox. Most people don’t understand any of this, so they ignore it. Keep your eyes and ears open for more in this arena.
Lynne Newcomer says:

May 13, 2010 at 5:09 pm

Great stuff…. The fair tax seems the way to go,here are two reservations /unexpected consequences (not without solution) 1) Would this create a black market? 2) would this hit the very poor right between the eyes,.If the margin they live on is close and they are not paying taxes would that throw them under the bus? Oh yeah… what about Social Security tax how would that be managed,,how would we assertain if someone has woked their required number of quaters to be elegible…. I don’t like the monsterous tax code we have today,but beleieve we could do this taking many cautous steps.
Shannon Castleman says:

May 13, 2010 at 5:51 pm

Good points nDave. That is why nI like the Fair Tax. Every taxpayer pays 23% sales tax on the purchase of final goods. Every tax payer gets a monthly prebate deposit into their checking account to cover spending to the poverty level-a one time tax deduction. This ensures the poorest of the poor will not pay sales tax.

If it were up to me, government would be cut 66%, and we would have a sales tax of 10% or so, with no prebate checks.
Carolyn Merritt says:

May 13, 2010 at 10:45 pm

We are running under the assumption that if the powers that be decided to go with the fair tax system, they would do away with the federal income tax. There are states that have a sales tax and also collect a state income tax and all collect real property taxes. Therefore, depending on what state a person lived in, with the fair tax and the state taxes, some would still be paying more than others. True, the underprivileged would pay their fair share.

The next question would be: What would be taxed and what would not be taxed? Food? Medicine?
Carolyn Attaway says:

May 13, 2010 at 10:59 pm

I didn’t get to participate in the discussion today, but I enjoyed reading everyones comments, especially on a day when our Governor just eliminated 2 of our state taxes: the Senior Citizens Retirement Income Tax and the States portion of the homeowners property tax!
Constituting America says:

May 14, 2010 at 12:23 am

As I read each day one of the Federalist Papers, my goal is to see the true intention of our Constitutional forefathers and also to see how it is relevant today.

Their wisdom and foresight continue to astound me.

“A prosperous 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.”

A prosperous commerce is the most productive source of national wealth. How is this relevant today? Is America’s prosperous commerce being compromised? When the Federal government becomes a source of income, care and resources, when they seize control of her commerce, American enterprise and inspiration are stigmatized. This stigmatization stifles the prosperity of commerce because citizens lose their motivation and one of their most precious American traits – ingenuity.

“The genius of the people will illy brook the inquisitive and peremptory spirit of excise laws.”

This is very relevant today in regard to businesses being heavily taxed.

And lastly, “A nation cannot long exist without revenue. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province.”

Our debt is surpassing our ability to recover. How long will we be able to survive economically, politically? How will we be able to protect ourselves? When destitute of support will we then resign our independence and sink into the degraded position of, yet again, a province?

These are serious times. Our forefather’s words serve as warnings. They documented it for us in our United States Constitution and the Federalist Papers. They provided the answers. Will we heed their wisdom? To do so we must know about it. We must understand it. Knowledge is power. Spread the word.

God Bless,

Janine Turner

P.S. I thank our fantastic scholar today, Paul S. Teller, and yesterday’s scholar Dr. Joe Postell. How lucky we are to have their insights and educated opinions! I also thank each and every one of you who have blogged! Fantastic.
Roger Jett says:

May 14, 2010 at 12:38 am

I found Ron Meier’s post today very helpful in getting a bigger picture of our nation’s current predicament. His depiction of the “fiscal policy” as it should be compared and contrasted to the “monetary policy” was insightful and he points out clearly the importance of both tools being used wisely and by the right people. I think the call for more accountability from the Federal Reserve with it’s management of monetary policy is prudent. I see great danger however in allowing those who through political motivation (Congress), have wrecked and misused the fiscal policy so badly, now gain undue influence over the management of monetary policy also. Thank you again Ron Meier in helping us get the bigger picture.
Constituting America says:

May 14, 2010 at 12:58 am

Federalist Number 12

Thank you to Dr. Paul Teller for your insightful post today, and to Dr. Joe Postell for your enlightening post yesterday! We are blessed to have Constitutional scholars such as yourselves helping us on our journey through theFederalist Papers! And thank you to everyone who continues to comment, and share your thoughts! I am learning so much from each of you.

“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.”

Taxes. No one like them. Since biblical times the tax collector has been seen as one of the most despised members of society.

Taxes sparked the American Revolution. It is in our heritage to resent taxes, especially when we feel we have little orno say in how the money is being spent!

Yet, Alexander Hamilton, in Federalist No. 12 makes an argument we may not like to hear – taxes are necessary. We must find ways to fund the government :

“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.”

The question is how.

It is fascinating to observe the progression of taxation in our country. From Article I, Section 8 of the United States Constitution:

The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States;

To a federal tax code that is over 7,000,000 words long (thank you to my friend Steve Moore for this fact, cited in a great piece he did for National Review http://article.nationalreview.com/268573/our-income-tax-monstrosity/stephen-moore)

What happened?

In federalist No. 12 Hamilton advocates consumption taxes because they are more fair, people will tolerate them better, and they are easier to collect. There were no assured means of assessing personal property ownership or personal income during this period in our country, and as Hamilton wrote, “because personal assets are difficult to trace, large tax contributions can only be achieved through consumption taxes.”

In three years we will “celebrate” the 100th anniversary of the income tax, the ratification of the 16th Amendment to the United States Constitution. It is hard to believe that this complicated, lengthy tax code has been in existence for less than 100 years. The explosion of this code in such a short time shows the tendency of government to grow and intrude into our life and liberty, unless we vigilantly keep it at bay, guarding the boundaries of our freedom.

It was eye opening to read Federalist No. 12, and see that in the early days of the Republic, an income tax was the furthest thing from the founders’ minds. These were men of great vision, and this is one more area where their foresight shines.

If only we had listened to them more closely!

Good night and God Bless!

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 13 – Cathy Gillespie

Federalist Paper 13, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 13, Federalist No. 13

Friday, May 14th, 2010

A big thank you to Dr. Morrisey for his insights today on Federalist 13, and his broader thoughts on the themes of Federalist 1–14.

We especially appreciate Dr. Morrisey coming back later in the day! The exchange between Dr. Morrisey and Marc Stauffer on the relationship between economics and morality hit on an important founding principle. Free enterprise is more than an economic issue or theory; it is a moral issue.

Mr. Stauffer brought up the fact that we “tend to look at our government in terms of economic remedies/gain and less at its moral implications.” Dr. Morrisey expounded on this by pointing out that “The Founders understood the relation between morality and economics in a much more careful way than we do.”

Indeed, there is a moral case to be made for free enterprise: People should have the freedom to pursue their entrepreneurial dreams; our children should not be held back by the debt of our generation; the tax burden of our country should not fall on a minority of our citizens, and at death parents should be able to pass on to their children the assets they worked hard for all their life, instead of turning a large portion over to the government in the form of a death tax. Our founders understood that economic freedom is a fundamental moral issue before it is anything else.

Arthur Brooks, President of the American Enterprise Institute, makes the moral argument for economic freedom better than anyone I have ever heard speak on the subject. For anyone who is interested in this view, I suggest his excellent Wall Street Journal article, “The Real Culture War is Over Capitalism,” from April 30, 2009: http://online.wsj.com/article/SB124104689179070747.html

When the moral argument for free enterprise is made, we begin the cultural shift that is so needed in our country.

Thank you again to Dr. Morrisey and Mr. Stauffer for bringing up this important topic.

Have a wonderful weekend everyone!

Good night and God Bless!

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 13 – Janine Turner

Federalist Paper 13, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 13, Federalist No. 13

Friday, May 14th, 2010

What a great dialogue today. I thank all of you for joining and I also thank Dr. Will Morrisey for his wonderful interpretation of today’s paper and The Federalist in general. It was super grand that Dr. Morrisey revisited our blog throughout the day! Thank you, Dr. Morrisey!

I feel lucky to be having this national conversational/blog regarding something as important as the founding framework of our country. Understanding this foundation will be the basis for maintaining our great republic. By great, I don’t simply mean powerful or rich, but I mean virtuous and free – free to think, free to live, free to express, free to fail, free to succeed, free to speak, free to worship.

There truly is a “180” movement in our country. Recently, a candidate was ousted and it was revealed by the constituents that it wasn’t because of the usual concerns such as: the economy or terrorism. It was because he didn’t heed the United States Constitution. Posing these questions, pondering these truths may lead our present and future congressmen and women to pause, pause upon the principles of our country and hence reflect principled behavior. We shall insist upon it as the future of our country depends upon it.

Through this process, our “90 in 90,” I am gleaning a deeper understanding of my, until recently mostly intuitive and instinctive, aversion to big government.

Publius argues forthrightly about the benefits of a strong union. This makes perfect sense as they lay out their arguments, most compellingly by their comparisons to Europe. The United States could have easily succumbed to a similar scenario, mirroring the divided countries of Europe. Our founding father’s persuasive passions to unite the colonies were truly Providential.

Yet, never do I interpret the United States Constitution, or the Federalist Papers, with the objective of obtaining a strong, overbearing Federal government. They wanted focus, fortitude and fluidity – yet never to be a tourniquet impeding the states’ rights – the states’ rights to diversify in spirit, make decisions best representing their local domain and maintaining the wherewithal to do so.

The question thus begs: how do we cut the line of dependency, dependency on federal bait and bargain?

Like a fish caught on the bait, we are flapping in the wind. If only, “catch and release” were an option perhaps then we could swim in the big pond together yet maintain our different stripes.

God Bless,

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 13 – Advantage of the Union in Respect to Economy in Government, for the Independent Journal (Hamilton)

Federalist Paper 13, Federalist Paper Forum 2010 Essay Project, William Morrisey, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 13, William Morrisey PhD

Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Friday, May 14th, 2010

Federalist 13: Why Union?

Always, Americans face two questions: the question of regime; the question of the modern state.

By “regime” I mean three things: who rules; by what forms or institutions the rulers rule; and what way of life rulers and ruled will lead. These three dimensions of the regime intertwine. If, for example, a tyrant rules, he will require such institutions as a large standing army controlled exclusively by himself for internal policing as well as for conquest, a judiciary dependent on his will alone, and a legislature without independent powers. If a tyrant rules, the way of life will encourage a moral atmosphere of mutual distrust and self-protective secrecy among neighbors, habits of fear punctuated by moments of terror.

If the people rule, the same thing might happen. The popular majority might tyrannize as well as—maybe worse than—a `majority of one.’ Hence republicanism or representative government, a republic of extensive territory and population wherein no one faction may obtain a ruling majority.

The first fourteen numbers of The Federalist address the crucial question of regime—whether a people can truly govern themselves non-tyrannically, by reflection and choice, not accident and force. But they equally address the question of statism.

Modern political philosophers—in England, such men as Francis Bacon and Thomas Hobbes—sharply criticized feudalism. A feudal society structures itself politically rather like a cinnamon roll: ruling authority organizes itself into swirls and morsels—an aristocrat here, a city there, with a king mixed in and a network of churches and common law courts throughout, each with more or less independent sources of power, sometimes overlapping one another but none simply superior to the others.

The statists did away with this. Statesmen organize states along the lines of a wagon wheel, with a central hub of authority and spokes radiating out to the border. Along these institutional spokes reside administrators or bureaucrats, beholden to the center for their appointments and salaries, exerting control over the population, now reconceived as the nation organized into the nation-state. From the center of the state commands and force flow out; to the center, recruits and revenues flow in, far more efficiently than under the feudal order. Wherever a state appeared, neighboring political communities more or less needed to imitate it, lest the wheel roll over them.

For Bacon and Hobbes and their royal sponsors, the best regime for the modern state was monarchy, giving unity of command to the powerful state. Having felt the pincers of monarchic statism, the Founders disagreed, with muskets.

But the defense of the natural rights enunciated in the Declaration of Independence via institutions of political liberty required the strength and unity that only a modern state could provide. Only a state could muster the economic and military strength to defend itself against the surrounding European empires, with their contempt for republicanism.

Publius therefore puts the matter of federal union front and center in his introductory essays. The Founders propose to solve the problem of republican self-government in a dangerous world of centralized, monarchist, imperial states by gathering military powers in a national government under popular control, with carefully enumerated, balanced, separated powers while leaving most domestic authority firmly in the hands of the governments of the several smaller states, where citizens can more readily govern themselves—states equally represented in one house of the national legislature.

In the thirteenth Federalist, Publius warns against disunion by appealing to Americans’ sense of economy. Were we to divide into separate confederacies, the two or three new governments would nonetheless rule extensive territories, larger than those of the British Isles. Instead of one federal government we would have at least two, with unnecessary duplication of ruling institutions and commensurately heavier expenses per capita. If jealousies arose between these confederacies, commercial tariffs and larger militaries would further degrade prosperity. North America would look more and more like the Europe from which Americans had declared their independence. To those who look askance at a national government, Publius replies, one such thing is better than two or three. To undertake to found thirteen such sovereignties would involve Americans in “a project too extravagant and too replete with danger to have many advocates.”

But can one government—even a carefully limited government—truly govern one such large territory? Publius answers this question in his fourteenth essay, concluding his introduction to the new Constitution.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College. His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.

31 Responses to “May 14, 2010 – Federalist No. 13 – Advantage of the Union in Respect to Economy in Government, for the Independent Journal (Hamilton) – Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”

Ron Meier says:

May 14, 2010 at 6:20 am

Thanks for such an interesting discussion of the underlying reasoning to what our founders were proposing, Dr. Morrisey. You’ve put it in a way that seems so simple, yet we and our representatives seem to prefer to make it complex. Who rules, by what form, and leading to what way of life; if only we could focus on that, instead of arguing about some of the minutia we hear every day in the media, perhaps our conclusions on the issues would become more clear, more quickly.
Susan Craig says:

May 14, 2010 at 7:38 am

The more I read, the more I’m struck with the truism that “What goes around comes around”. We are again arguing the size and structure of the best form of governance. The irony of the situation is that ‘strict constructionists’ in the late 1700′s were called Anti-Federalists and now they’re called Constitutionalists.
Will Morrisey says:

May 14, 2010 at 8:53 am

Thank you, sir. I deserve no credit, really. I’m only repeating what I learned from Aristotle’s “Politics” about forty years ago in Harry Clor’s class at Kenyon College, supplemented by what the late Robert Horwitz taught in his class on Machiavelli, Hobbes, Locke, and Rousseau.
Shannon Castleman says:

May 14, 2010 at 9:25 am

Dr. Morrisey, you said, “The Founders propose to solve the problem of republican self-government in a dangerous world of centralized, monarchist, imperial states by gathering military powers in a national government under popular control, with carefully enumerated, balanced, separated powers while leaving most domestic authority firmly in the hands of the governments of the several smaller states, where citizens can more readily govern themselves—..”

Thanks for writing it like that. It makes it clear in my mind how the Founders thought, as well as their intentions for the new government.

The notion that the federal government is basically responsible for protecxting the US while leaving the states to basically handle domestic idea—-I guess the 10th Amendment may apply here?

Thanks!! Good thought on your part.
Marc W. Stauffer says:

May 14, 2010 at 10:21 am

Incredible explanation Doctor! Thank you for the insight. I think it was prudent of Publis to remind his fellow Americans what is was they were separated from as when a little time passes we tend to forget. The continued use of economic consequences to disunion is, as always the best “attention getter”. Economic, rather than moral consequences to actions, have, unfortunately, always received the quickest attentions and reactions from the populous. Explaining the economic disadvantages of disunion most likely stirred the senses of the people to see the folly of disunion…much like people today. We tend to look at our government in terms of economic remedies/gain and less at its moral implications. According to statistics we choose our elected officials most commonly by their economic views and less on their moral character/stances…something I believe that is causing a lot of the trouble we are experiencing today.
Chuck Plano, Tx says:

May 14, 2010 at 12:02 pm

Now that we have learned through the first 14 Federalist Papers how our Founders envisioned the benefits of a Union of States formed into one national government with limited enumerated powers vested in the Federal Government and the powers not granted to the Federal System to remain with the People and the States. We now see how that system has been perverted and usurped by the Federal System in it’s grasp for uncontrolled power over the States and the People the question is how do we get back to the original intent of the Founders without the kind of action they envisioned would occur if there were no unified Federal Government.
Will Morrisey says:

May 14, 2010 at 12:22 pm

Mr. Stauffer, I think that you make a good point about the contemporary attempt to emphasize economics at the expense of moral character. The Founders understood the relation between morality and economics in a much more careful way than we do. Throughout The Federalist Publius takes care to link morality with self-interest, but without reducing morality TO self-interest. The best example of this may be seen not in The Federalist but in George Washington’s Farewell Address, which is also a defense of federal union.
For example, here in #13 Publius defends union on economic grounds; however, as previous papers have already made clear, the purpose of union is American prosperity in the comprehensive sense–ultimately, the defense of activities that conduce to human flourishing in a regime that defends the natural rights of its citizens. The later habit of looking to our government for economic remedies, which you remark, tends toward passivity and attitudes of dependence, not self-government.
Maggie says:

May 14, 2010 at 2:43 pm

@ chuck…..You asked the question, “how do we get back to the original intent of the Founders without the kind of action they envisioned would occur if there were no unified Federal Government?” I do believe there are ways….the question is will people be willing to make the sacrifices necessary to get us back to our Founders’ original intent? Many of us HERE are, I am quite certain…..but most of us have already made many sacrifices trying to survive the government largess. Those that still NEED to make the sacrifices are least likely to be willing to make ANY.

Thank you so much for your wonderful essay Dr. Morrisey and for your willingness to come back and give further insight throughout the day.
Chuck Plano, Tx says:

May 14, 2010 at 3:50 pm

Maggie you have made my point, the fact that so many of our citizens today have “no” investment in our government today. What i mean by that is they pay nothing or very little for the cost of the government we have that they do not see any need to change it. Those who are willing will do those who are unwilling will not and i am afraid that we have way too many who are unwilling today.
Dave says:

May 14, 2010 at 4:12 pm

Thank you Professor Morrisey for sharing your thoughts on Federalist No. 13 and jump-starting my brain this morning. Hamilton seemed to know which buttons to push to get the citizens of New York to go along with the plan of union–their security and their pocket-book. Could it be the case that Hamilton was right in November of 1787, but might be wrong in the long run? Or to put it another way, is there a limit to the size of a republic such as ours; and are their certain characteristics of the governed which will either foster or inhibit the expansion–did he really think that virtue would remain the defining characteristic of the populace as the “celebrated Montesquieu” said it must? I agree with the Federalists that the circumstances at the time pointed towards union as the only means of survival. The Articles of Confederation were deficient in a number of respects and enemies were ravaging America’s trade on the high seas.

Based on experience, which Hamilton will call “that best oracle of wisdom” (No. 15) and Madison will call “the oracle of truth” (No. 20), can we not infer that any particular structure made by man, according to any applicable natural laws, will have a necessary limit? Can the integrity and composition of the parts be maintained to continue to support the whole?–Will the wheel simply collapse at some point? Hamilton’s focus was mainly external; and rightly so. But even Madison (No. 10 & 51) didn’t foresee any problems (as long as virtue was predominant.) He thought that an extended republic, composed of many different interests and where the combining of interests was difficult, would be a sufficient guard of the people’s liberty.

As our attitude and outlook become more and more national as opposed to federal, and as more and more power, control, and money coalesce in Washington D. C., I see more and more waste, fraud, and oppression. We may not have a national plebiscite but through modern media a national consensus is “reached” to determine national policies on any number of topics–healthcare, immigration, energy use. Modern communication seems to vitiate Madison’s argument for extended republics. Today, small, vocal, well-placed factions can combine quite easily and gain power. There does seem to be a tendency for political power to follow some sort exponential growth curve (maybe it’s “Power tends to coalesce, and absolute power coalesces absolutely.) Is there a vicious cycle with the increasing public sector depending on a decreasing private sector?

For external concerns, a centralized government is probably the answer. But for local, private concerns, local government is best. The best government is that government which governs closest to the people. As John Adams wrote to Jefferson, “Human nature, know thyself.” A republic composed of citizens lacking virtue is not long for this world.
Marc W. Stauffer says:

May 14, 2010 at 4:54 pm

Mr. Morrisey;
I agree with your thought, “Throughout The Federalist Publius takes care to link morality with self-interest, but without reducing morality TO self-interest.”
Exclusive self interest is the blinded path to a Unions destruction. Mutual interest must be taught in the formative years of life lest self interest take firm root.
Many generations have been taught economic based history rather than history with its eye on the motives and morality and as such we have lost touch with the original intents of our Founders or great leaders. President Woodrow Wilson said; “A Nation which does not remember what it was yesterday, does not know what it is today, nor what it is trying to do. We are trying to do a futile thing if we don’t know where we have come from, or what we have been about”.
Many history books, my High School history text (1977) included, are going as far as to expunge any morality or mutual interest from their text. This, unfortunately, leads our youthful generations to the self-serve trough without care as to how personal success is accomplished, only looking at the economic gains/losses of a situation. It also leads to an unhealthy reliance on “nanny state” governance to control those economic factors. Things which we are now seeing blossom forth.
Shannon Castleman says:

May 14, 2010 at 4:55 pm

Chuck and Maggie, I do not know either. But I think the best vehicle for getting back to the intent of our Founders would be to have a few Governors (look at Chris Christie of NJ, maybe Rick Perry of TX, maybe Jan Brewer of AZ) stand together and say “NO MORE MANDATES.”

If we could find just 4-5 men and women Governors of integrity who will stand up to the federal government-even if that meant a stand off with federal police authorities- and proclaim the 10th Amendment alive again, then PUR movement will gain some traction. It will gain credibility.

Remember the movie “Braveheart” when William Wallace pursuaded Bruce the Earl to lead his people? I am paraphrasing but he says something like, “People don’t follow titles, they follow leadership. They will follow you if you will just lead them. I see it in you.”

That is what need today, because no one is going to take “normal” citizens like us seriously. We need people with some credibility in the government sector-Governors. 90% of Congress can’t provide that leadership, but I believe 4-5 Governors could start a snowball, mixed with the Tea Party movement.

Any thoughts?
Mrs. Stone says:

May 14, 2010 at 4:57 pm

It’s interesting to see how knowledgeable our founders are about the world around them. Although people like Newt Gingrich speak in ways that convince me that they have an informed historical perspective, it is hard to see that in a lot of our countries leaders.

Hamilton gives a very interesting insight into why the nations of Europe were constantly fighting one another and what we should do to avoid it. Without minimizing our nation’s civil war it is telling that the actual conflicts on our own nation’s soil have been limited over the year that our nation has been in existence and that proves that Hamilton really understood the importance of us having one nation here in America instead of 3 or 4.
Chuck Plano, Tx says:

May 14, 2010 at 5:32 pm

Shannon you are right but we must motivate the people to stand with those Governors and let them know that we will be there to support their efforts. That is why it is so important to let Arizona know that we support their efforts in the immigration fight. It is not about profiling or any thing else but protecting the citizens where the Federal Government has refused to do so. If “We” The People let the Federal Government run over Arizona then what is left for the rest of us but the same.
Ron Meier says:

May 14, 2010 at 7:20 pm

Good point Shannon. It doesn’t take a majority of Governors to make something happen; it takes just a few strong willed Governors willing to stand up and say no. The Governors have failed, over many decades, to stand up to the Congress and say no to mandates that come with almost any money the feds distribute, for example, for highway construction, education, etc. As originally constructed, as I read these papers, the States made sure the Constitution protected their rights as States. Somewhere along the line, they seem to have allowed the federal government to effectively override their own rights on the larger local issues, such as education. We’re fortunate to have some strong leaders at schools like Hillsdale College say no to federal money so they were not forced to do things they felt were contrary to their own values. If only we can get some of our Governors to do the same thing. The ones you’ve named are a great start; let’s hope more come along with them, especially after the November elections, when we are more likely to have change at the State houses.
Jeff Hill says:

May 14, 2010 at 7:52 pm

Susan, you have made clear some feeling I have had while reading along, that the Anti-Federalists often had arguments equally as compelling as the Federalists. And issues that dominated the Constitutional Convention are still, or once again, being debated today.
Will Morrisey says:

May 14, 2010 at 9:04 pm

Dave, thanks for that excellent post. My own view is that it’s impossible to posit a natural limit to a commercial republic, but in practical terms every such republic will find such a limit, depending upon its neighbors. The oceans pretty much set such a limit, east and west, with the eventual exception of Hawaii and other smaller holdings in the Pacific. No sensible person supposed that we would actually integrate the Philippines permanently into the United States, for example. British Canada set such a limit on the United States to the north. Mexico turned out to be the complicated case; we solved the problem for more than a century by seizing its underpopulated, northern sections and effecting a regime change in the capital.
Another way of putting it is to say that an extended, commercial republic must eventually find some limit; the question will then be whether it can secure its borders militarily but in the final analysis politically. It can do so politically if the neighboring regimes are also commercial republics. It helps if they are also weaker.
In my opinion, the statism that you and I worry about derives not from the size of the territory but from the change in the regime effected by the Progressives in the last century. The Progressives managed to legitimate a much more extensive, bureaucratic state than anything seen here before, taking their cues from German political thought and practice. Germany had unified the 37 or so German states under the Kaiser; Bismarck organized a substantial welfare state along with a formidable army. Many of the American intellectuals who founded `political science’ as an academic discipline in the 1880s (the young Woodrow Wilson among them) studied in Germany, so they picked these ideas up right at the source.
Constituting America says:

May 14, 2010 at 9:15 pm

What a great dialogue today. I thank all of you for joining and I also thank Dr. Will Morrisey for his wonderful interpretation of today’s paper and The Federalist in general. It was super grand that Dr. Morrisey revisited our blog throughout the day! Thank you, Dr. Morrisey!

I feel lucky to be having this national conversational/blog regarding something as important as the founding framework of our country. Understanding this foundation will be the basis for maintaining our great republic. By great, I don’t simply mean powerful or rich, but I mean virtuous and free – free to think, free to live, free to express, free to fail, free to succeed, free to speak, free to worship.

There truly is a “180” movement in our country. Recently, a candidate was ousted and it was revealed by the constituents that it wasn’t because of the usual concerns such as: the economy or terrorism. It was because he didn’t heed the United States Constitution. Posing these questions, pondering these truths may lead our present and future congressmen and women to pause, pause upon the principles of our country and hence reflect principled behavior. We shall insist upon it as the future of our country depends upon it.

Through this process, our “90 in 90,” I am gleaning a deeper understanding of my, until recently mostly intuitive and instinctive, aversion to big government.

Publius argues forthrightly about the benefits of a strong union. This makes perfect sense as they lay out their arguments, most compellingly by their comparisons to Europe. The United States could have easily succumbed to a similar scenario, mirroring the divided countries of Europe. Our founding father’s persuasive passions to unite the colonies were truly Providential.

Yet, never do I interpret the United States Constitution, or the Federalist Papers, with the objective of obtaining a strong, overbearing Federal government. They wanted focus, fortitude and fluidity – yet never to be a tourniquet impeding the states’ rights – the states’ rights to diversify in spirit, make decisions best representing their local domain and maintaining the wherewithal to do so.

The question thus begs: how do we cut the line of dependency, dependency on federal bait and bargain?

Like a fish caught on the bait, we are flapping in the wind. If only, “catch and release” were an option perhaps then we could swim in the big pong together yet maintain our different stripes.

God Bless,

Janine Turner

May 14, 2010
Andy Sparks says:

May 14, 2010 at 9:49 pm

Im going to say something controversial in answer to the implied question of Ron’s statement “Somewhere along the line, they seem to have allowed the federal government to effectively override their own rights”: The the issue is slavery. If slavery had not been defended to the point of secession by the Confederate states, I don’t believe we would now have as bloated and powerful a federal government as we have today.

While the Federalist papers do not touch on the subject of slavery, it is the proverbial elephant in the middle of the room throughout U.S. history up until 1861 when shots were fired and the union was torn asunder. Without that peculiar institution, it is my belief that we would have a more balanced power between the federal government and the state governments. Without the Civil War, there would be no 14th ammendment which once and for all declared the federal government as supreme.

A lot of Lost Causers will scream “Hallelujah”, but I approach the subject from a different viewpoint. Unlike their belief that Abe Lincoln was a tyrant; I say that the southern states that promoted and defended their institution to the tune of 600,000 dead were more to blame for the current situation of states playing second fiddle to the central government. How we can transfer back the power of the federal government back to the states, I don’t know; but I do know how we got here, and it started when the founding fathers refused to deal with the issue of slavery that quite possibly would have prevented the union from forming in the first place.
Lynne Newcomer says:

May 14, 2010 at 10:54 pm

SUPER stuff !I think the first thing I want to say is about the “disunion” that pleges us today. We are divided and it seems that Obama is not given to putting things back together,but into factions serving what he believes will promote his idology. He is displaying an arrogance a times which concerns me a lot. I wonder if he realizes that a man is diminished to the degree that he indulges his arrogance?AZ is a perfect example of this, he makes a joke about the PEOPLE of that state while his failure to deal with immigration while a 900 lb gorillia standing at his shoulder as his jokes cleverly distort .His Attorney General threatens to sue AZ,but never read the bill he is objecting to. Obama addresses a graduation class and implies that too much tech, may be harmful??????What on earth????Is he afraid of too much information that may encourage deeper thought about matters facing us today????I think most people are feeling concerned about the deficite,and the spending at the hands this Administration ,and there seems to be no end to the billions and now trillions that are now weighing us down, and making us vunerable .
We have much to do and I suppose the first thing is to engage in places like this. Thank you so much for all your hard work and creating this site. November may serve as a bell weather and surly information will underpin our sucess.
I think our founders would be going cross eyed if they were to see things today.Their beautiful carfully constructed thoughts/principles were a gift to the ages and I do hope we can blow off the dust of the times,we allowed to settle in on them and revitalize them.
Maggie says:

May 14, 2010 at 10:57 pm

Shannon you are so right and I am glad to see that a few Governors are starting to take a stand. Even Arnold S. is talking about cutting entitlements in Calif. It remains to be seen if he is all talk and no action or if he’ll actually do what needs to be done. If he actually goes through with it, it will be interesting to see how many other states follow suit.
Roger Jett says:

May 15, 2010 at 12:57 am

Shannon Castleman, I especially enjoyed your earlier comments on what it will take to get us turned back toward what the Founders intended. I’d like to point out though that before Robert the Bruce became “the lion in the north”, it was the acts, deeds and exploits of the “normal citizen” William Wallace that united the diverse clans and rallied them to resist tyranny. Before Stirling Bridge and Falkirk and long before Bannockburn there were the skirmishes and battles of Lanark ,Loudoun Hill, Ayr, Scone, Aberdeen and Perth. Before the nobles resolved that they would lead the fight, the common people determined and declared that they would be free and be independent. It was a long road, not a short one. I’m reminded of what Paul S. Gillespie said a few days ago, in reference to Federalist No. 11, “We are quickly loosing our ability to remain free and independent, because unlike Hamilton who obviously took the long view, we have concerned ourselves with the expediency of the moment and see only the quick fix from the short view”.
Susan Craig says:

May 15, 2010 at 9:39 am

Andy, in the battle to return to the founding principles you are half way there. There is a principle that says in order to fix a problem one first has to correctly identify it and how it came to be. It is only then that effective strategies can be formulated.
Dale Pettit says:

May 15, 2010 at 9:44 am

We are all on this boat together and just maybe this study is the flick of the wrist that changes our direction. We are seeing signs that a new atmosphere of attitude is rising. The recent ousting of incumbents or life long politicians is a sign. I pray that our simple response to a long over ignored actions of our politicians is not too late.

The national debt, promises of future entitlements, and actions to devalue our currency to zero is bankrupting our nation and it’s citizens. Our position and strength to be a major world power has tanked significantly because over the last 100 years our selected leaders forgot to defend our constitution. Or……our citizens did not know enough to be more selective. They did not know what they had or did not know that we have to take an active part in our government actions.

Yes we have to have leadership because many will follow. Getting traction and attention for these ideas is a real challenge.

Thanks to all of you for this study.
Dave says:

May 15, 2010 at 12:08 pm

Roger, I liked what you seemed to suggest about the common people, the individual, being a key to solving our current crisis of liberty. Many Americans (myself included) have not been paying attention as a century-long, ever-so-subtle incremental drift away from our founding principles has put our liberty in some jeopardy. Dr. Morrisey mentioned the Progressives and how they view the governing of our country. In my limited reading of the Progressives (mostly selections from American Progressivism by another Hillsdale educator, Ronald J. Pestritto), they seem to have a firm belief in the perfectibility of man brought about by just the right social and political control. And there are academic, legal, political, and artistic elites who have the “wisdom” and good intentions to “improve” upon our founding principles so that we can attain the perfection they so ardently desire for us.

I know the modern elites are really, really smart and everything, but I think I’ll stick with the Founders. Informed not only by their religious sentiments, but also by their study of human history and man’s various attempts to form civil societies; they accepted man as an imperfect being, and the structure of any suitable government would take into account man as he truly is not as he might be imagined in some utopian, fantasy world. How smart were the Founders? I recently heard a scholar say that President Kennedy’s quip about Jefferson dining alone was probably literally true–”I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone.” (Remarks at a dinner honoring Nobel Prize winners of the Western Hemisphere. 4/29/62)

The increasing centralization of power and tax dollars in Washington would horrify the Founders. They did not fight a revolution against the centralized power of the King and Parliament only to have it brought 4000 miles here to Washington to exercise tyrannical power over the individual American. Our founding document the Declaration of Independence tells us where the Founders put their political faith and trust, and it wasn’t in the State. It was in the certain unalienable rights of the individual. We possess those rights independent of any government. We establish government to secure our rights. Ours is a protector government not a provider government.

We have lost that necessary faith in the enlightened self-determination of the autonomous individual exerting his free will in a material world governed by natural laws. If Ludwig von Mises is right that “government is essentially the negation of liberty,” individuals who innately yearn to be free, will always come to be frustrated by looking to a bigger and bigger government to make their life choices for them. One of the greatest gifts God has given us is free will; without it life would cease to have any meaning.
Paul S. Gillespie says:

May 15, 2010 at 12:09 pm

Thanks for quoting me Roger. Its nice to be remembered. I was otherwise occupied yesterday, but am catching up this morning. Great comments by everyone following a thoughtful essay by Dr. Will Morrisey. I do however take great exception to Andy Spark’s idea that slavery was the chief cause of the War for Southern Independence. (Civil War is used incorrectly in this type of conflict)
States Rights, much a concern today, was the key issue to the South. On this subject, the South was entirely right as we see the present subjugation of the States to the actions of an all powerful federal government. The main issue to the North was not slavery but revenue. Over 60% of Federal income, distributed unevenly to Northern States came from Southern States. Most Northerners had no strong feelings about Southern succession until the Northern newspapers and banks started pointing out the need of the North for the continued wealth of the South. (Before the war, Mississippi was actually the richest State in the Union) When asked why he was against the South leaving the Union, Abe Lincoln replied: “Where would we get our income?”
It was only when the “greenbacks”,through rapid inflation from printed money had caused more financial problems than lost revenue did the North need another reason the shore up faltering support for conquering the South.
A quick look at the laws most of the Northern States restricting the rights, freedoms and movements of the non slave black population, makes it very evident that no Northern State was willing to start a war with the South to free a black person. But since the Union was already knee deep in blood and debt…why the hell not try to put a moral face on their actions.
I agree that the resulting 14th Amendment has its flaws and should be repealed, but lets not throw out the baby with the bathwater. It does restrict the States from passing laws that infringe on our Bill of Rights.
Andy Sparks says:

May 15, 2010 at 7:28 pm

If you don’t think slavery was a chief cause of the Civil War, then you look at history with a jaundiced eye. True, economics was an underlying cause of conflict, but you have to look deeper than the surface; something lost causers and slave state sympathizers refuse to do.

I don’t disagree that the northern states are without culpability in the livelihood of the peculiar institution, but to point to the non-slave holding states as the ignoble precipitators of the war is disingenuous. If the cotton-growing states had been willing to confine their slave holding status to those within which they currently existed, there might not have been an issue. Likewise, and more to my point, if the institution had been irradicated at the outset of the Constitution, then the likelihood exists that a war would have been avoided entirely.

Unfortunately, with help from the 3/5′s clause, the Southern states dominated the presidency, Congress, and even the Judiciary (Andrew Jackson alone appointed 7 of 9 supreme court justices including Chief Justice Roger B. Taney). Only when immigration and westward expansion from 1815 onwards precipitated a transition of power from congress to the northern states did congressmen like Jefferson Davis worry that the government would shift power towards the rapidly industrializing north.

It wasn’t northern financial improprieties that led to a war; it was the south trying to hold on to its power based on an already antedated institution that led to war. Try as you might to blame something other than slavery on the war, if you know your history and the underlying causes to straw man excuses like the tariff and states’ right, then you know that slavery was the principal cause of the Civil War.
Kay Tournay says:

May 15, 2010 at 8:21 pm

How fortunate you were to have Harry Clor for a teacher – would that all our kids in government schools could, too. That’s not possible, so, we all must become Harry Clors (read, read, read) and find opportunities to re-educate America’s children on the exceptionalism of America!
Christopher says:

May 15, 2010 at 9:30 pm

It is truly exciting to see how interested people like Hamilton were in promoting industry and business. When I look at essay #14 I see a much more robust concept — government should facilitate commerce not restrict it. The limited powers of the federal government look much more logical when I see that encouraging commerce through the post office, highways and interstate trade were explicit powers. I guess I’m now wondering what happened that caused us to get off track today? It often seems that rather than facilitating commerce, many in government see it as they job to try to stop business in its tracks.
Mark Dixon says:

May 15, 2010 at 11:47 pm

This is an amazing site and Janine and Cathy have really made the essays relevant. The contributors you guys have found as guest bloggers are awesome. I want to say thank you so much for doing this!
Will says:

May 17, 2010 at 3:57 pm

“When asked why he was against the South leaving the Union, Abe Lincoln replied: ‘Where would we get our income?’ ”

Do you have a link for that or a text for attribution? I’m curious to see the remaining context of that Lincoln quote.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 14 – Janine Turner

Federalist Paper 14, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 14, Federalist No. 14

Tuesday, May 18th, 2010

Howdy from Texas. I hope you had a nice weekend. I started reading a wonderful book this weekend, which I have found to be a great companion piece to our “90 in 90 = 180.” It is entitled, “Miracle at Philadelphia,” by Catherine Drinker Bowen. Check it out!

I thank Professor W.B. Allen for his thought-provoking essay today. I really appreciate his time and talents. I thank you, Professor Allen. And I thank all of you who are joining us! Please spread the word about our important mission here and read it with you children and/or family members or friends. Please also spread the word about our contest for kids. The “We the People 9.17 Contest.” Our children are in desperate need to be educated about our founding principals. It is up to us to teach them. Check out tonight’s behind the scene video. It is my daughter informing other kids about the contest!

Tonight’s reading once again reveals our Constitutional founding fathers’ amazingly brilliant ingenuity. It is obvious from the Constitution that they did not want any resemblance of class warfare or “Nobility.” The art of a Republic was the perfect balance for a democratic state. James Madison makes a striking point regarding the complaints that there was no precedent for a Republic. Was there a precedent for the Declaration of Independence, that courageous and biting document that sparked and validated the Revolutionary War? Was there a precedent for the Revolutionary War?

Regarding relevancy today, how many modern day citizens really know that we are a Republic? Do our children know that we are a Republic? Do they understand and value our freedoms, rights and free enterprise? In one of Cathy’s recent essays, she included a link to a statistic that I found to be alarming. A Rasmussen poll in 2009 stated that 13% of people over 40 years of age believed that socialism was better than capitalism, yet in the group of people under the age of 40, 33% believed socialism was better than capitalism. I find this statistic to be very alarming! Imagine what the statistics would be today?

Thomas Jefferson words send us a timely warning, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”

James Madison states in Federalist No. 14, “The kindred blood that 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.”

May our kindred blood unite in preserving our truly magnificent country and may we focus on both the founding principles that shaped our country and the goodness of the people that made it be. May we set the precedent for rekindling the flame of awareness about the brilliant framework of our country and its relevancy today.

God Bless!

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 14 – Cathy Gillespie

Federalist Paper 14, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 10, Federalist No. 14, Federalist No. 14, Federalist No. 71

Tuesday, May 18th, 2010

Federalist #14

First, a big thank you to Dr. Allen for his insightful comments. As usual, Dr. Allen does much more than simply explain to us what is in the reading, he takes us several steps further.

And thank you to all of you who commented today. Especially to Kay for her heartfelt story about the airport encounter, and the glimpse into the soul of our Union.

Wow! I loved Federalist #14! There are so many beautiful passages about unity in our country – “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.” While the American people “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…” But the item that most caught my attention was the discussion of the difference between a republic and a democracy. I was struck by the fact that many of the communication and travel constraints our founding fathers operated under have been removed in present day by technology, and by the fact that technology is facilitating our country’s move toward democracy, something our founding fathers would not see as an improvement.

The difference between a republic and a democracy is so important, and so little understood. In Federalist 14 and elsewhere, Publius devotes a good amount of time explaining the difference between these two forms of government, and detailing the weaknesses of a democracy as opposed to a republic. In our founding fathers’ time, a democracy within a large geographic area was impossible, limited by the “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.” In Federalist 14 Madison points out that the geographic size makes the United States much more suited to a republic than a democracy.

Today, technology has erased the constraint imposed by geographic size, and our culture is drawing us towards democracy. Television shows such as American Idol where millions of people cast ballots; online polls where instant readouts of the public’s tastes, preferences and opinions are measured; Twitter, Facebook: all put more power than ever in the collective public’s hands to instantly express opinions on any matter.

But the weakness of pure democracy is the same, whether it is a small geographic area where the people are physically coming together to vote on every issue affecting them, or whether it is millions sitting at computers, in front of their televisions, or texting on their cellphones “voting.” As Hamilton states in Federalist 71, “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.”

In Federalist 10 the weakness of pure democracy was summed up this way: “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.

As the culture draws us toward democracy, and with the geographic constraints on democracy removed by technology, it is more important than ever that we understand the systemic flaws of this type of governance.

Our elected officials must be firmly grounded in the meaning of the republic, and their role in balancing competing interests and factions. We must understand the fundamental reasoning and principles that drew our founding fathers to govern through a republic, and the Federalist Papers are vital for that understanding.

I am so grateful for all who are adding to our knowledge base each day, and journeying with us through these readings. Thank you!!

Good night and God Bless!

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 14 – Objections to the Proposed Constitution From Extent of Territory Answered, From the New York Packet (Madison)

Federalist Paper 14, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 14, W. B. Allen PhD

Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University

Sunday, May 16th, 2010

In the fourteenth essay Publius argues that America has discovered the merit of making the mechanical principle of representation the basis of unmixed and extensive republics. This is not only an extended republic, but it is a republic in which we do not have to make a special place for the rich and the poor. We will not reserve one legislative house for the rich, another house for the poor. We will not create formal classes in government, and the government will not depend on class distinctions.

It may not have been observed that the tenth essay’s principle of the extended sphere of the republic has a consequence in the operations of politics. There will be commerce, and single district representation also. There will be the “multiplicity of interests.” But we must not neglect that as interests multiply they must affect more people. The consequence of that fact for the ancient distinction between the rich and the poor is a significant diminution in the numbers of the poor. The logic and dynamic of the extended commercial republic is precisely to squeeze rich and poor towards the middle.

The real impact of this constitutional design is to get rid of the struggle between the rich and the poor. The great American middle class is an historical oddity that has come to characterize all the modern world impacted by the industrial revolution and the principles of modern republicanism. This growing middle class is the basis of the unmixed constitution, a constitution founded on the middle class that turned almost into the only “class.” One of the most extraordinary things about the argument in the tenth essay, which is reflected as well in the fourteenth essay, is that it anticipates the nineteenth century debate about class and political life. Publius responded in advance, in effect, to the arguments of Marx and others, insisting that the United States need not have the rich overcome the poor or the poor overcome the rich. It could rather offer a social, economic, and political dynamic through which in fact those distinctions disappear in terms of their political significance.

Grant we must that what are called the super-rich do exist, as do the tabloid sheets that celebrate. But we do not view the rich, or even the super-rich as a class. Which is the reason that they can be just about anyone, from extraordinarily gifted athletes to people of very old money and families. They are isolated; they are individuals. They are not a class. In fact the only thing that distinguishes them today is their money. Otherwise they seem much like everybody else, and sometimes less. What matters is that this happened not by accident; it happened by a constitutional design that aimed to base the Constitution’s support on the strength of a very large middle class.

The claim, therefore, in the fourth paragraph of the fourteenth essay, that we have an umixed and extensive republic, goes to the very heart of the Antifederalist challenges to the Constitution and leads Publius to inquire in the paragraphs following, what are the limits of a democracy? and how are we supposed to calculate this? The question must be asked because we know that general arguments must be tested by practical limits. We cannot assume that there are no limits to representation as an approach, especially if we take seriously the task of “harmonizing and assimilating” differences. Differences must at least be kept to such a level that they are subject to being thus harmonized.

Publius provides a calculation in the fifth paragraph and those following. It is interesting because of what it says about 1787 technology and what it implies about the future. First, he describes the limits of democracy as a dynamic function: “the natural limit of 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.”

The natural limit is the distance determined by public functions. The natural limit of a republic is that distance from the center, which will barely allow the representatives of the people to meet as often as may be necessary for the administration of public affairs. Can it be said 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.”

To say that members of the Confederation Congress were “continually assembled” is a bit disingenuous; for although the Congress was almost constantly in session, one of the chief complaints about it was the notoriously poor attendance of delegates.

Publius then conducts a lesson in public geography, leading him to conclude that the ability to travel from any point, within a certain period of time (two weeks in 1787), to reach capital and conduct business, sets the allowable size of the system. This is a fairly mechanical definition, and it can be misleading. Not only does it not respond to the matter of harmonizing and assimilating, but it deflects attention from the ultimate basis of Publius’s judgment. The twelfth paragraph makes this clear, when Publius appeals to ties of affection to sustain “one great respectable and flourishing empire.”

In other words, Publius reminds us that we started with a Union, not with a theory on the strength of which we generated a Union. A theory may tell us that the Union is not too big for its britches, but that does not imply its indefinite extension. The condition for extending the Union is the continual existence of the Union. But that, in turn, would depend upon people accepting its principles, and first and foremost those principles enunciated in the Declaration of Independence.

Thus, two things operate simultaneously: first, the notion of the mechanical theory, the distance limit and, second, the moral limits, the moral distance. To the extent that we accomplish Union on the scale of the moral distance, it becomes possible by the mechanical theory to justify extending the reach of the Union, and not one bit farther.

W. B. Allen is Dean and Professor Emeritus of Michigan State University

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 15 – Cathy Gillespie

Federalist Paper 15, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 14, Federalist No. 15, Federalist No. 15

Wednesday, May 19th, 2010

Have you been watching Janine’s Behind the Scenes Videos? They are fantastic! Last night Juliette Turner, Constituting America Youth Director, talked about the We The People 9.17 Contest, and how important it is that young people understand the Constitution and founding principles of our country! Check out these fun, short videos – where else can you see pets reading the Federalist Papers, or meet Longhorns with names like Revolution or America’s Pride? You’ll see some beautiful Texas landscapes, and if you click on the right one, you’ll even get to hear Janine sing the Star Spangled Banner!

Thank you to Professor Allison Hayward of George Mason University! Your thorough explanation, and tie-in to Europe’s present day troubles, made Federalist No. 15 come alive! Thank you also to all who posted today. If you are reading, and haven’t written your comments in our blog, please join the conversation! We need your voice and view!

I echo Professor Hayward’s observation that Hamilton’s Federalist No. 15 is a bit of a downer after Madison’s optimistic essay yesterday. Madison’s Federalist No. 14 made my heart swell with pride to be a citizen of the United States of America. Federalist No. 15 reminds us that our country soared to greatness, strength and respect from humble beginnings. In 1788 the prospect of failure was very real. Hamilton does a brilliant job describing the environment, and paints a bleak picture, “the last stage of national humiliation”: lack of respect in the world, debt, no troops, declining commerce and land values, lack of private credit – the list goes on and on. The country was at a low point.

But out of this low point, rose our great Nation – rebuilt upon the framework of the United States Constitution. In fact, if all had been going well in the late 1780′s, the beautiful, unique, perfectly balanced republic that emerged might never have been born.

That is the lesson I take from Federalist No. 15. And one I have learned from Constituting America’s co-chair and my good friend, Janine Turner, who is an inspiration to me. Janine often speaks about how tough times etch our character and shape us into who God wants us to be. The tough times in Hamilton’s day produced the United States Constitution.

Our country is again going through tough times. Hamilton’s words throughout Federalist No. 15 could easily be describing our present day circumstances. But look what these tough times have already wrought: a renewed passion and engagement of the citizens of the United States! There is an energy and thirst for knowledge taking hold across the country that I have not felt before in the 25 years in which I have been involved in politics.

Where will this lead? What lies ahead? When we Americans join together, with our spirit of enterprise, ingenuity and passion, only good things will result. We are once again on the “precipice” Alexander Hamilton speaks of, but I predict we will not plunge into the abyss. Instead, we will emerge stronger, fortified, with a renewed, patriot’s zeal and commitment to our country’s founding principles.

I look forward to the readings that lie ahead, sharing with you and others, and putting what I am learning to use!

Good night and God bless!

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 15 – Janine Turner

Federalist Paper 15, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 15, Federalist No. 15

Wednesday, May 19th, 2010

Relevancy today. It is very clear in Federalist Paper No. 15 that cohesion between the states was necessary in order to preserve our union in a viable way.

Our guest scholar, Professor Allison Hayward, (I thank you Professor Hayward for your wonderful essay!) speculates about the future of today’s European Union, “I suspect that the EU may fail, because its constituent nations will be unwilling to yield the necessary sovereignty to create a sufficient federal government.”

The potential failure of the European countries to render themselves to a singular government speaks volumes about why the United States was able to succeed. Americans had the foresight and the fortitude to unite after the Revolution, rendering brilliant results. Thus, two miracles birthed the United States of America, one the success of the Revolutionary war, the other the success of the United States Constitution.

Homage must be paid to our Constitutional forefathers who tirelessly, tenaciously and methodically gave their time and talents to achieve the three pertinent steps: the Constitutional Convention, the rendering of the Constitution and the eventual ratification. This was no easy feat, yet it proved to be our rallying point and the launching pad for realizing the potential of our countrymen and the wealth of the land.

Yet, today, we must question if the confines of our great Constitution have been stretched beyond what our forefathers intended. A federal government to persevere and preserve is very different than a federal government to control and contrive.

Here are some of Alexander Hamilton’s words that I find relevant today and thought provoking:

“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, to be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation.”

“We may indeed, with propriety, be said to have reached almost the last stages of national humiliation. There is scarcely any thing that can wound the pride, or degrade the character, of an independent people, which we do not experience.”

“Do we owe debt to foreigners, and to our own citizens, contracted in a time of imminent peril, for the preservation of our political existence?”

“Is public credit an indispensable resource in a time of public danger?”

“Because the passions of men will not conform to the dictates of reason and justice, without constraint.”

“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.”

Are we not experiencing all of the above today?

God Bless,

Janine Turner

One Response to “May 18, 2010 – Federalist No. 15 – Janine Turner”

William Statkiewicz says:
May 19, 2010 at 3:18 pm
I am so motivated every morning when I wake up. Looking ” Forward” to when I will log onto a computer and read todays Essays on the Constitution.
I Think I will be an expert by the time this is all over.
The Checks and Balances of the Constitution ensure us that we dont have chaos
” Because the passions of men will not conform to the dictates of reason and justice, without constraint.”
Therefore , this is why we are a CIVILIZED society in the United States.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 15 – The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton)

Allison Hayward, Federalist Paper 15, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Federalist No. 14, Federalist No. 15

Guest Blogger: Professor Allison Hayward, George Mason School of Law and fellow with the Center for Competitive Politics

Tuesday, May 18th, 2010

Federalist #15

Alexander Hamilton’s Federalist 15 is a gloomy counterweight to Madison’s optimistic Number 14. Madison ended No. 14 praising the noble course set by the founders of the new nation. Hamilton’s No. 15 is like a splash of cold water, reminding citizens of the moment’s terrible perils.

And the troubles are many. The nation’s present configuration is inadequate to the task. The central government cannot govern, and thus cannot honor its debts, defend its territory, engage in diplomacy, or unite its constituent state governments.

And therin lies the rub, not just for Hamilton and the founders, but for generations afterward. How should the central national government relate to the states? The states are the unit of government charged with the ratification of the constitution. But Hamilton knows that a “mere” confederation of states will not survive, not in the dangerous world of the late 18th century. The central government needs sufficient power to govern the nation as one unit, when solidarity is required. Recalcitrant states must be brought to heel to honor their obligations. That meant, in contrast to the Article of Confederation, extending the federal government’s power to impose obligations upon real citizens as individuals, not just intangible state governments.

This is a big step. Hamilton’s challenge is to appeal to his reader’s fear of irresponsible state governments. He can then position the national government as a solution to that problem, rather than as a tyrant to be feared itself. But among his readers are also the political leaders within New York, so he must argue carefully. He isn’t attempting to convince his New York readers they need to fear for irresponsibility in their own state government. He doesn’t need to accuse them of fecklessness. It is enough that other states will take advantage of a weak central government to pursue short term agendas to the ultimate detriment of all.

As we know, debate over the size and scope of the federal government persisted after the ratification, even to this day. From our vantage point, it may seem odd to entertain the notion that the central government could be too weak. Federal statutes and regulations reach deeply into American society, and into areas of governance traditionally left to state and local governments, such as criminal law, education and corporate governance. But in 1787, the prospect that the United States could become a “failed” state was real. However one feels about the size of government today, reading Hamilton should remind us that “ordered liberty” requires some authority to maintain the order.

Federalist 15 makes interesting reading in light of the financial crisis in Europe. Although the EU has an executive, the power of the central government is fragile and nothing like that established by the Constitution. Is the European Union sufficiently powerful to bring fiscal order to its constituent nations? Or will the lack of fiscal discipline in Greece, to name but one member, pull the EU down, destroy the Euro, and provoke domestic crisis throughout Europe? Can Europe impose a federal solution? I suspect that the EU may fail, because its constituent nations will be unwilling to yield the necessary sovereignty to create a sufficient federal government.

Professor Allison Hayward teaches election law at George Mason School of Law and is also a fellow with the Center for Competitive Politics

16 Responses to “May 18 – Federalist No. 15 – The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton) – Guest Blogger: Professor Allison Hayward, George Mason School of Law and fellow with the Center for Competitive Politics”

Susan Craig says:
May 18, 2010 at 10:01 am
Honor and restraint seem to be the necessary ingredient that both Madison and Hamilton imply. Especially in this quote from #15: “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.” Unfortunately quite a few of the list seem to be rampant in today’s world. I think the most damaging is misrepresentation (aka lying). Presenting your self or your program in language that obfuscates the intent. Most recent example “Employee free choice Act”. How ironic the “Big Government” of 1787 is now looked on as the ideal of the “Small Government” people. As we traveled from 1787 to now it seems that we suffered from the belief that if this much is good maybe a little more will be better.

Susan Craig says:
May 18, 2010 at 10:37 am
Found an interesting chart defining the ‘factions’
The Parties as they were constituted at inception:
Republicans (aka Anti-Federalist)——————–Federalist
radical Whig—————————————-moderate Whig (can anyone define Whig belief)
localists——————————————–more centralist
agrarian——————————————–commercial
less taxation—————————————-taxation
balanced budget————————————deficit (as a tool for credit)
egalitarian—————————————— enlightened paternalist
strict construction———————————–broad interpretation
pro-French——————————————pro-British
expansionist—————————————–reluctant expansion
became modern Dems——————————–became the modern Reps
Does it strike you that there is coming another 180?

Charles Babb says:
May 18, 2010 at 11:21 am
Professor Hayward, your analysis of Federalist No. 15 is very enlightening.
However, Publius may have been short sighted in his view. The balance of power still seems to be a problem. In 1787, the States were “recalcitrant” of their fiduciary and other responsibilities to the Confederacy. The Constitution seems to have solved that problem, but will it solve today’s dilemma caused by a Federal governments bribing the States into prostituting away (using the citizens tax dollars) the liberties of their citizens, with it’s tentacles wrapped firmly around our throats in many areas. Especially in the area of education. They realize that a people made dumb as sheep, are easily led to slaughter.
Today we have a federal government that refuses to enforce the laws it has passed; but wants to bring legal action against a State which, in desperation for life, limb and property, tries to take upon itself that task of citizen security, for which the federal government is now recalcitrant. The federal legislature is so enthralled with a power grab that all they can talk about is creating “comprehensive legislation”, rather than insisting on the enforcement of the laws already on the books. K_I_S_S.
Friends, passion has caused me to exceed the bonds of strict adherence to the analysis of FEDERALIST No. 15, I beg your indulgence.
MAY GOD BLESS AMERICA

Ron Meier says:
May 18, 2010 at 12:24 pm
We are going through this exercise of reading the Federalist Papers @ a time in world history when we get see first hand what our founders were talking about in the first 20 or so papers. As Professor Hayward notes, we are watching a Confederation in Europe crumble before our very eyes, and we can refer back to the various FPs to understand why.
At the same time, we are seeing in our own country the very thing that the States and citizens were worried about with respect to our Federal government attempting to consolidate power by having complete control over two of the three branches of government and attempting to neutralize the ability of the states, particularly Arizona, from protecting their own interests.
It’s great that we are able to analyze what we see, hear, and read more rationally, rather than just passionately, as a consequence of reading the FP. The language of the authors of the FP makes reading and understanding somewhat arduous, but enlightening when the gist of each article comes through.

Carolyn Attaway says:
May 18, 2010 at 12:24 pm
I found Paper 15 to be very relevant to current events. I could not help but think of all the situations that are occurring in and around America today, as I read Hamilton’s debate for a Federal Government.
The third paragraph had excerpts that jumped from the page which served as reminders of why we need a sound and common sense Federal Government, and not one set on pushing its own agenda. Hamilton states “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….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?….We have neither troops, nor treasury, nor government….Is commerce of importance to national wealth?….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.”
These statements, though written at an earlier time to defend the need of a Federal Government, can be looked upon today as a defense to rid ourselves of the status quo in Congress. Hamilton tries to convince the people of New York of the need for a basic Federal Government whereas today it has become overbearing and oppressive. The Congress has allowed the United States to be humiliated, and has apologized for her standing as a Superpower to other countries. They have endangered our AAA rating in the financial markets by increasing our debt to foreign powers as well as to their own citizens.
We may have military power, but it is constantly being undermined by accusations and political correctness. We have no treasury, and our federal government is quickly becoming imbecilic. I believe Congress has forgotten the reason behind its creation.
Hamilton writes: “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.” I realize that this statement was intended for the States in trying to form a Union, but I cannot help but see the hypocrisy in this statement when in it is applied to the Federal Government in relation to the immigration laws and dealing with enemy combatants.
One of the main reasons for a Federal Government was, and is, National Security. Our Congress views the laws to these issues as recommendations, to be applied to their best advantage, when in fact, it should be their number priority.
I heard the following on the news yesterday, “Most of the illegals caught crossing are from Mexico or South America, but thousands are classified as OTMs, “other than Mexicans,” including hundreds from nations that sponsor terror. These are the records we obtained at this federal detention center near Phoenix, Arizona. We find illegals from Afghanistan, Egypt, Iran, Iraq, Pakistan, Sudan, and Yemen in custody. This congressional report on border threats confirms members of Hezbollah have crossed the southwest border. It also contains photos of military jackets found on the border. The Arab insignia reads: “Martyr: Way to eternal life.” The other depicts a plane crashing into the Twin Towers. The congressional report also reveals the route Middle Easterners take. They travel from Europe to South America to the tri border region where they learn to speak Spanish, then travel to Mexico and blend in with other illegals heading to this country. Former Arizona Governor Janet Napolitano is now secretary of Homeland Security. We wanted to ask her about the border threat, but our request for an interview was never answered.” (Link: http://www.wsbtv.com/news/23434381/detail.html)
Instead of securing our borders, Congress is inviting illegal immigrants to the bounty produced by hardworking citizens, and admonishes those who question their actions.

Dave says:
May 18, 2010 at 1:15 pm
Thank you, Professor Hayward for your thoughts on Hamilton’s No. 15. I was struck by the tone of the paper, and more specifically, the words and phrases Hamilton used to describe the situation back in the early winter of 1787. The “troubles are many.” They probably were, but I couldn’t help picture Hamilton as Professor Harold Hill in the Music Man singing “We Got Trouble.” In writing about the “material imperfections” and “those defects in the scheme of our federal government” under the Articles of Confederation, Hamilton does seem to be a tad hyperbolic: “impending anarchy,” “national humiliation,” “imbecility of our government,” “mimic sovereignty,” “melancholy situation,” “brink of a precipice,” “plunge us into the abyss,” “destitute of energy,” “political monster,” “desperate extremity,” and “the frail and tottering edifice.” He sums it all up by basically saying that anything that could have gone wrong has gone wrong. Here is a master salesman at work.
Hamilton knows the stakes and is not shy in making the hard sell. America is in dire straits and anyone who opposes the plan of union can be characterized “by ambition or by avarice, by jealousy or by misrepresentation.” The negative aspects of our human nature never seem to be present in the supporters of the plan. They all have the Wisdom of Solomon, the calm patience of Job, and the self-sacrifice of Jesus. Let’s be honest, Hamilton knew his duly revered General Washington would most likely be chosen as the first president and that he, Hamilton, would be in the first administration. It is to be remembered that it was Hamilton’s plan at the Constitutional Convention that had a president for life with supreme veto power over any and all laws.
So, even if his Bill of Particulars, “enumeration of particulars,” presents a convincing indictment against the existing Confederation, Publius should still be tasked to justify his solution to “this desperate extremity.” Publius has 70 more papers to make his case. Will the new plan of union truly protect the governed so they may enjoy the prime object of government, ordered liberty?
One is tempted to ask, “Who decides what, and how much, order?” In the end, force or the threat of force must become a real possibility. Washington said, “Government is not reason, it is not eloquence—it is force! Like fire, it is a dangerous servant and a fearful master.”
Thank you Professor Hayward for bringing in the current EU troubles. This seems to be analogous to what Hamilton said about the law must have sanctions. How is the EU to act against Greece but by force (“military execution”) or the threat of force, if Greece decides not to honor her agreements.
In No. 15 there exists a rallying cry for our times: “[L]et us make a firm stand for our safety, our tranquility, our dignity, our reputation. Let us at last break the fatal charm [of Statism of all kinds] which has too long seduced us from the paths of felicity and prosperity.”

Carolyn Attaway says:
May 18, 2010 at 1:44 pm
Thank you Dave for mentioning the statement in your last paragraph. I too feel this is a rallying cry for our times. I highlighted it in my reading of Paper 15 and drew an arrow to the last sentence six paragraphs down: “we must extend the authority of the Union to the persons of the citizens, –the only proper objects of government.” As citizens of the United States, I believe it is our task to keep our government in check, and be more active in our involvement than just voting.

Maggie says:
May 18, 2010 at 2:19 pm
Carolyn I couldn’t agree more. When I read “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?”, I instantly thought of China and how much of our debt they hold. We are literally selling away our power. I was also struck by this statement: “We have neither troops, nor treasury, nor government”. Yes, we have a very strong military; but for how much longer when every democratic administration that comes into power further defunds the troops? I, too, immediately thought of the immigration issues with Hamilton’s writing “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.” I believe that this quote stands for many laws on our books that are simply NOT being enforced. Every time a politician brings up gun control and how “we need more laws” all I can do is think about the many laws we already have controlling the ownership of firearms….they just aren’t being enforced. Why is it that those in Washington just don’t seem to comprehend that criminals don’t care about laws? They have already broken laws…that is why they are CRIMINALS. Further revoking the rights of law abiding citizens will NEVER change that.

Lynne Newcomer says:
May 18, 2010 at 3:22 pm
Thank you Professor Hayward for your quidence on this paper.
I do so agree with so much that has been written by everyone that it would waste time to name everyone.
Simply… with regard to AZ, we are either a Nation of laws or we are not.The Gov of AZ.showed remarkable fortitude to stand up to Washington.She is no fool she knew she would meet with much hateful speech etc, but went on and is weathering the storm hip- hip- hurray.The fact that Washington is lowering the standards of civil, and acceptable dialogue is surely regretable but the sanctions are going to come their way,and they will come from the voting booth.We are a smart people and we know the Pres,and Congress ore failing to do their jobs.
I like the EU example, the officers of the EU,seem to be toothless and of a more ceremonial nature.I do hope that they find their way .

Dave says:
May 18, 2010 at 3:49 pm
Carolyn, what I think everyone can accept is that a sovereign implies some control over the individual. The sticking point for the Anti-federalists (and for me I’ve lately learned) seemed to be how justly and efficiently a distant, centralized power would govern. We’ve seen some elaboration and we’ll see a lot more of the compromise reached between the consolidators and confederals. The consolidators placed their trust in the State. Those advocating for more of a true federal system wanted a buffer between the national government and the individual. There would be two sovereigns over the individual, each with their own sphere of authority. General, national concerns would fall under the purview of the general government, and the local, private, every-day concerns would be handled by the state or local government. I think it’s quite workable in a republic of virtue, in spite of Hamilton’s slam of an imperium in imperio as a “political monster.”
The irony should not be lost on any of us reading No. 15–Hamilton was indicting the weak national system of the government under the Articles of Confederation and yet almost every malady he mentions could apply today in spite of a very strong leviathan, national government. Publius is constantly urging opponents of the plan to open their eyes to the light of reason and experience and see that an energetic, wide-ranging central power will cure all their ills. We’ve gone wrong somewhere. Would that there were a modern-day Publius to counsel us on how we’ve gotten off course and what we can do to get back on the right course.
I do know our state governments have let us down. Here’s a sampling of excerpts we will read in the next few weeks showing the buffer role of the states I mentioned:
We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority. (No. 85)
The executive and legislative bodies of each State will be so many sentinels (No. 84)
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 (No. 46)
schemes of usurpation will be easily defeated by the State governments (No. 46)
I should not have rambled on so. All I wanted to say is that I agree with you in the role of the individual, but the states have a responsibility and they seem to be shirking it.

Jimmy Green says:
May 18, 2010 at 4:32 pm
The theme of the States surrendering some power to the Federal Government via the Constitution to strengthen their security and prosperity through a Union of these same states is a continual
theme in the federalist papers.
While I generally agree with the adage of “united we stand divided we fall”
I would be more interested in Hamilton’s views on what should occur if the Federal government fails to uphold its enumerated powers.
What are the states rights if the federal government abrogates or is lacking or deficient in its constitutional powers.
I’ve seen mentions of the Arizona law in some people’s writings. What would Hamilton think the proper response of a state to the Federal Governments lack of securing the borders? There are many such examples but as the federalist papers are to explain why the states should unite one is left to wonder what Hamilton’s view are on states rights as a consequence of the failures of the Fed.

Shannon Castleman says:
May 18, 2010 at 4:38 pm
Dave, indulge away. Great points. Those who have brought up the EU are right on. True, we have a front row seat , as though we went back in a time mchine, to watch the disintegration the former empire across the pond.
But the Professor’s statement brought it to a new light for mr when she said that the EU actually needs to be stronger (like hamilton wanted for the US). It was hard for m to grasp as I always viewed individually the nations of Europe to be too much beholden to central government.
But now I see the reasoning behind that.
I am learning so much.

Carolyn Attaway says:
May 18, 2010 at 5:26 pm
Maggie, I agree with you about being over regulated by our government. If I hear of one more law that strips away our right to make choices, I think I will scream. Oops! Sorry! I have already done that. This latest push to take away McDonalds right to put a toy in their happy meal because parents shouldn’t be burdened with having to tell their children NO, I think takes the cake. If I wanted a nanny, I would have hired one.
I agree as well that our 1st and 2nd amendment rights are under major attack, but the people in Congress who are suppose to care, just roll over and admit defeat. I am soooo ready for November.
Dave, you have me in your corner in the belief that States have been giving away their rights piecemeal by piecemeal. Many are starting to wakeup in lieu of all the costs that they will be burdened with, I just hope it is not to late. Regarding your wish for a modern-day Publius, Gov. Chris Christie is on the right track, and if he succeeds in lifting up New Jersey, we may have someone other Governors may try to imitate.

Carolyn Merritt says:
May 18, 2010 at 7:51 pm
Thank you Professor Hayward for your enlightening analysis of Federalist 15. Hamilton could have written this paper for what is happening to our Country today. We are heaviily in debt, our military is being undermined by Congress and this President; toll roads, power companies, oil companies owned by foreign countries; we print money just as fast as this government can spend it and worse of all – our respect around the World is diminishing because of all the apologists in the current admininstration.
I liked Hamilton statement “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint.”
Amen Charles: “May God Bless America.”

Constituting America says:
May 19, 2010 at 12:23 am
Relevancy today. It is very clear in Federalist Paper No. 15 that cohesion between the states was necessary in order to preserve our union in a viable way.
Our guest scholar, Professor Allison Hayward, (I thank you Professor Hayward for your wonderful essay!) speculates about the future of today’s European Union, “I suspect that the EU may fail, because its constituent nations will be unwilling to yield the necessary sovereignty to create a sufficient federal government.”
The potential failure of the European countries to render themselves to a singular government speaks volumes about why the United States was able to succeed. Americans had the foresight and the fortitude to unite after the Revolution, rendering brilliant results. Thus, two miracles birthed the United States of America, one the success of the Revolutionary war, the other the success of the United States Constitution.
Homage must be paid to our Constitutional forefathers who tirelessly, tenaciously and methodically gave their time and talents to achieve the three pertinent steps: the Constitutional Convention, the rendering of the Constitution and the eventual ratification. This was no easy feat, yet it proved to be our rallying point and the launching pad for realizing the potential of our countrymen and the wealth of the land.
Yet, today, we must question if the confines of our great Constitution have been stretched beyond what our forefathers intended. A federal government to persevere and preserve is very different than a federal government to control and contrive.
Here are some of Alexander Hamilton’s words that I find relevant today and thought provoking:
“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, to be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation.”
“We may indeed, with propriety, be said to have reached almost the last stages of national humiliation. There is scarcely any thing that can wound the pride, or degrade the character, of an independent people, which we do not experience.”
“Do we owe debt to foreigners, and to our own citizens, contracted in a time of imminent peril, for the preservation of our political existence?”
“Is public credit an indispensable resource in a time of public danger?”
“Because the passions of men will not conform to the dictates of reason and justice, without constraint.”
“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.”
Are we not experiencing all of the above today?
God Bless,
Janine Turner

May 18, 2010
Constituting America says:

May 19, 2010 at 12:55 am
Have you been watching Janine’s Behind the Scenes Videos? They are fantastic! Last night Juliette Turner, Constituting America Youth Director, talked about the We The People 9.17 Contest, and how important it is that young people understand the Constitution and founding principles of our country! Check out these fun, short videos – where else can you see pets reading the Federalist Papers, or meet Longhorns with names like Revolution or America’s Pride? You’ll see some beautiful Texas landscapes, and if you click on the right one, you’ll even get to hear Janine sing the Star Spangled Banner!
Thank you to Professor Allison Hayward of George Mason University! Your thorough explanation, and tie-in to Europe’s present day troubles, made Federalist No. 15 come alive! Thank you also to all who posted today. If you are reading, and haven’t written your comments in our blog, please join the conversation! We need your voice and view!
I echo Professor Hayward’s observation that Hamilton’s Federalist No. 15 is a bit of a downer after Madison’s optimistic essay yesterday. Madison’s Federalist No. 14 made my heart swell with pride to be a citizen of the United States of America. Federalist No. 15 reminds us that our country soared to greatness, strength and respect from humble beginnings. In 1788 the prospect of failure was very real. Hamilton does a brilliant job describing the environment, and paints a bleak picture, “the last stage of national humiliation”: lack of respect in the world, debt, no troops, declining commerce and land values, lack of private credit – the list goes on and on. The country was at a low point.
But out of this low point, rose our great Nation – rebuilt upon the framework of the United States Constitution. In fact, if all had been going well in the late 1780’s, the beautiful, unique, perfectly balanced republic that emerged might never have been born.
That is the lesson I take from Federalist No. 15. And one I have learned from Constituting America’s co-chair and my good friend, Janine Turner, who is an inspiration to me. Janine often speaks about how tough times etch our character and shape us into who God wants us to be. The tough times in Hamilton’s day produced the United States Constitution.
Our country is again going through tough times. Hamilton’s words throughout Federalist No. 15 could easily be describing our present day circumstances. But look what these tough times have already wrought: a renewed passion and engagement of the citizens of the United States! There is an energy and thirst for knowledge taking hold across the country that I have not felt before in the 25 years in which I have been involved in politics.
Where will this lead? What lies ahead? When we Americans join together, with our spirit of enterprise, ingenuity and passion, only good things will result. We are once again on the “precipice” Alexander Hamilton speaks of, but I predict we will not plunge into the abyss. Instead, we will emerge stronger, fortified, with a renewed, patriot’s zeal and commitment to our country’s founding principles.
I look forward to the readings that lie ahead, sharing with you and others, and putting what I am learning to use!
Good night and God bless!
Cathy Gillespie
May 18, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 16 – Cathy Gillespie

Federalist Paper 16, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 16, Federalist No. 16

Thursday, May 20th, 2010

A big thank you to our guest blogger Marc Lampkin! Marc, thank you for guiding us today!

I so appreciate all of you who take the time to comment. You often see nuggets of wisdom in these papers that I have glossed over on my first reading, and your posts send me scrambling back to find the phrases you elaborate on.

Two phrases jumped out at me upon my first reading of Federalist 16, though, and they are the same mentioned by Nickie and Carolyn:

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.

“A people enlightened,” ”natural guardians of the Constitution”

“We the people,” are the natural guardians of the Constitution, because as our country drifts from the Constitution, it is “We the people,” who have the most to lose. If we are not “enlightened,” to understand what we had, and have, we will certainly not know what we have lost, and are losing. And our children will understand even less than us. We must not only enlighten ourselves, but enlighten our children, so the torch of freedom may be passed to the next generation of Americans. Watch Janine’s Behind The Scenes Videos starting today, as she teaches her daughter about the Constitution in a several part series! Janine Turner Short Film Part 1 Constituting America

I am both amazed, and a bit embarrassed to admit how much I am learning through this exercise. I graduated from Texas A&M University with a B.A. in political science, yet I don’t recall ever picking up the Federalist in college. This reading is my first time through these prescient papers. Tonight, I feel empowered that I am becoming “enlightened,” and that the founding fathers considered us – ‘we the people” – to be the guardians of the Constitution. The more I learn, the better I can guard it! And the more I can teach my children! On to Federalist No. 17!

Good night and God Bless,

Your fellow guardian of the Constitution,

Cathy Gillespie

2 Responses to “May 19, 2010 – Federalist No. 16 – Cathy Gillespie”

Mark Hansbauer says:
May 20, 2010 at 3:30 am
The people must be “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. . . .”
The distinction between a “legal exercise” and an “illegal usurpation of authority” implies knowledge of the difference between “legal” and “illegal.” Is a governmental action “legal” simply because it follows precedent or is based on a plausible interpretation of the Constitution? Is such action “illegal” when it contravenes precedent or is based on a novel interpretation of the Constitution? These questions bring out the possibility that it is not sufficient for the people to understand the Constitution merely at the textual level. There has to be knowledge of standards that ‘stand above’ the Constitution, not to usurp it, but through which we arrive at the fullest and most just construction of the document.

Dave says:
May 20, 2010 at 11:30 am
Mark, good observation. The Constitution did not come complete with a rule book for construction or, as we would say, interpretation. Who is to decide what is constitutional? How are they to go about the process of deciding? And on what are they relying? It seems to me that the approach to the Constitution has become one of avoidance. Interested parties have an agenda or result in mind and then scour through the case law to find any little precedent they can hang their hat on to nudge the law incrementally toward their desired result.
Each incremental step away from the Constitution seems completely innocuous, plausible and reasonable. But after 230+ years, the “constitution” they are interpreting is strikingly different from the one the framers put their name on. Others have likened it to generations of judges and legal scholars attempting to improve an Old Master painting with a brush stroke here and a brush stroke there. Hubristic acts of defacement and vandalism are what I call those narrow-minded, agenda-driven improvements. Want a different constitution?–AMEND IT! There are, after all, amendment provisions.
Some legal minds get it. Justice Scalia and Justice Thomas come to mind. There are others:
“I claim the right to look at the Constitution itself, stripped of judicial encrustations, as the index of constitutional law.”–Justice Jackson
A judge “remembers above all that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put upon it.”–Justice Douglas
“The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”–Justice Frankfurter
The Founders did not suffer from delusions of grandeur; Hamilton says it was never about “the chimerical pursuit of a perfect plan. I never expect to see a perfect work from imperfect man.” (No. 85) They did give us constitutional means to make it “more perfect.” I wish we would use those means instead of unconstitutional ones which rely on the arbitrary policy preferences of unelected judges with lifetime tenure.
We have ended up with, as other Constituting America contributors have mentioned, the Orwellian doublespeak of engaging in commerce by not engaging in commerce. (see Wickard v. Filburn, 317 U. S. 11 (1942))
Mark, sometimes what I see is not a question of knowledge of what’s “legal” or “illegal.” They have the knowledge; they just want a different outcome. Thanks for getting me to think about these ideas.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 16 – Janine Turner

Federalist Paper 16, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 16, Federalist No. 16

Wednesday, May 19th, 2010

I want to let you know that I have begun a short film with my daughter for my “Daily Behind the Scenes Videos.” Tonight is Part 1. Check it out. The link is on the website on the home page or the link to the YouTube version is on the Constituting America Facebook Page. It’s going to be fun! I direct these and edit them on my computer nightly – with the help of my daughter, of course. The goal of these videos is to enlighten American citizens about our great United States Constitution, our “90 in 90” and our “We the People 9.17 Contest” so, spread the word!

Here we are at Federalist Paper No. 16! I want to thank Marc S. Lampkin for joining us again today. We are so lucky to have your scholarly insights, Mr. Lampkin!

Alexander Hamilton’s quote, “When the sword is once drawn, the passions of men observe no bounds of moderation,” speaks volumes. First of all, it is how Alexander Hamilton died, in a dual of passionate discord with Aaron Burr. Secondly, I can’t help but find relevance in these words regarding the situation in Arizona. The more I read, absorb and learn about our United States Constitution, the more I start seeing all aspects of our current political environment through Publius’ eyes –their reasoning, their framework – which, of course, is the whole point of our “90 in 90.”

“When the sword is once drawn, the passions of men observe no bounds of moderation,” starts to make more and more sense to me when I witness, with the rest of America, the friction between our “United States”, Arizona and California. It was experienced over two hundred years ago, has happened throughout our history and it is happening today – “faction.” What we are experiencing as a country is a sample of what would have happened if we had not ratified our Constitution. There would have been no way to keep the peace and find a unity in vision and mutuality of purpose.

Thus, my current assessment is that the cohesiveness of a Federal government served and should continue to serve its purpose in certain areas – one of those areas is the defense and protection of her states.

Thus, the question begs the answer. Why hasn’t the Federal government protected her border states? Yes, states have rights, and yes, the Federal government has grown way beyond our founding father’s intentions but in this instance regarding defense, the federal government should have stepped up to the plate. Arizona has been left to fend for herself and is getting abuse from all angles.

Consequentially, we are witnessing state against state – accusations, misinterpretations – faction. Will California boycott her ally? Will Arizona turn her brother’s lights?

“When the sword is once drawn, the passions of men observe no bounds of moderation.”

Let us experience the freedom, uniqueness and independence as individual states yet, the unity of brotherhood as a country. Once the sword is drawn where will the passions end? Discourse is an enticement. United we stand. Divided we fall. Has this not been the theme of these Federalist Papers?

God bless,

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 16 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, From the New York Packet (Hamilton)

Federalist Paper 16, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Marc S. Lampkin 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 16, Marc S. Lampkin, The Articles of Confederation

Guest Blogger: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School

Wednesday, May 19th, 2010

Federalist #16

In Federalist #16, Alexander Hamilton continues to outline the deficiencies of the present system of government authorized under the Articles of Confederation. It is Hamilton’s view that the loose confederation will lead to lawlessness and ultimately anarchy once the inability to enforce its own laws becomes apparent.

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.

The system that was in place had two important facets: it was a voluntary association of the states and secondly it was in most respects a government whose actions were non-binding. The fact that the Articles of Confederation were voluntary meant that the Congress ruled with the consent of the governed and therefore exercised their authority lawfully. However, the fact the government could not enforce its dictates meant that ultimately festering conflicts could result in armed conflict among the several states as the enforcement mechanism of last resort. Furthermore, due to the differences between the size and influence of some of the states, the confederation was particularly ill suited for America. With no enforcement power, the confederation created asymmetric power centers encouraging large and powerful states to see national policies for their benefit while disregarding the needs of the smaller and less powerful states. In the unlikely circumstance wherein the Congress adopted a policy that might benefit small states, larger states might ignore them with impunity. Such a circumstance potentially leads to civil war.

In fact, Hamilton observes that this asymmetric distribution of authority had other problems unrelated to the tendency towards internal armed conflict. Even when faced with exogenous threats, because the states view themselves as sovereigns — motivated primarily by their own self preservation — the national government would either not have access to the resources necessary to prevent an attack from a foreign enemy or perhaps simply not respond to an attack if the attack was perceived as being against one of the states rather than the nation as a whole.

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.

On the other hand, since the Articles of Confederation do not give Congress the power to lay and assess the taxes without consent or to compel the armies necessary to stave off attacks, the weakness that the American government presents to other nations would appear quite provocative. Hamilton complains that by their nature, the states as sovereigns are not transparent entities and therefore even assessing duties or raising armies is unduly difficult. Does a state refuse to pay up its share because of actual shortages it is experiencing or because its support for the cause identified is lackluster?

If there were a national government like the one described in the Constitution, it would already have the authority to defend itself — recognizing that an attack on one part was an attack on all.

Even if the conflict from foreigners is not the result of a coordinated assault i.e. a war, foreign governments would still be tempted to sow dissension among the states, Hamilton argues. As long as the states themselves are complete sovereigns, they have every incentive to evaluate foreign relations, trade, and even aid solely in terms of its impact on them as sovereigns and not on the nation as a whole. Hamilton calls this “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.”

Nevertheless, even if the states were to voluntarily provide the resources for an army, would the force be used to intimidate would be attackers or instead to enforce through intimidation its policies among the states themselves?

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.

Then this would present concerns that are even more troublesome. Wouldn’t it be the case that what Hamilton calls the “delinquency” (meaning the failure of compliance) would occur not just among one state but also likely among several? In addition, wouldn’t powerful states attempt to align themselves in ways to avoid suffering the consequences of their delinquencies? If so using the military to enforce compliance begins to look a lot like civil conflict or civil war now that the states joined together in alliances are using enforcement of national policies as a tool of enforcing their perceived advantages.

Hamilton writes, “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.”

A final critique that Hamilton makes of the Articles of Confederation stems from the notion that it would be beneficial that states would affirmatively approve most of the policies adopted by the national government. While on its face, it might appear that requiring a second step in order to assure that a given statute must go into effect would be good for liberty, Hamilton argues that it was more likely to lead to anarchy or civil conflict.

Under the U.S. Constitution many checks and balances were already put in place, which acted in many ways as hurdles to excessive, or passion based legislation. The new Constitution by its design sought to encourage greater deliberation leading to legislation that is more necessary and weeded out that which was frivolous. Forcing the additional step of state approval would be needlessly limiting the flexibility of the national government while sowing seeds for conflict.

Hamilton asserts, 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.

Hamilton reveals himself to be quite alarmed by the potential threats posed by the Articles of Confederation. While he may not see the U.S. Constitution as a panacea to all problems that the young nation might face, he believes that by its design, it is far better able to prevent conflict, or in the event that conflict occurs, it would be able to see that the nation was ultimately able to survive it.

Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC is a graduate of Boston College Law School

18 Responses to “May 19 – Federalist No. 16 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, From the New York Packet (Hamilton) – Guest Blogger: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School”

Susan Craig says:
May 19, 2010 at 9:03 am
The more I read and study what transpired between the Declaration of Independence and the end of George Washington’s second term the more I find myself squarely between the two factions. I see the deficiencies of the Articles of Confederation but seeing how some of the programs that were darlings of the Federalists have developed I think I would have fought to caveat the Federal Government a little more strictly and defined the relationship of State to Federal a little more clearly.

Charles Babb says:
May 19, 2010 at 11:55 am
How would we ever make any sense of these writings, were it not for the wise interpretation and guidance of our special guest bloggers? Thank you.
I would like to explore Mr. Lampkin’s thoughts in the following observation;
“Under the U.S. Constitution many checks and balances were already put in place, which acted in many ways as hurdles to excessive, or passion based legislation. The new Constitution by its design sought to encourage greater deliberation leading to legislation that is more necessary and weeded out that which was frivolous. Forcing the additional step of state approval would be needlessly limiting the flexibility of the national government while sowing seeds for conflict.”
Do we not see a design fault here, resulting in excessive legislation, happening today? Is this one of the areas where you, Susan, would like to have seen greater clarification?
I shudder to think what the volume of legislation is that has been passed over the years. And yet in November we will elect, or re-elect, representatives who will go to Washington and pass more confusing and conflicting legislation, largely because (1) they try to hide the intent of their proposed legislation through volume and “legalize” and (2) our representatives are too lazy to read it.
How can you “deliberate” that which you do not comprehend?
And once it becomes the law of the land, if they do not enforce it, are they not in violation of their “Oaths of Office”?
What recourse then do “we the people” have?
We have November.
MAY GOD BLESS AMERICA

Nickie Summers says:
May 19, 2010 at 12:47 pm
Two thoughts come to mind reading the founding papers:
First, it is crystal clear to me how far our country has moved away from the Constitution (defining principles and the relationship between the federal government and the states/citizens.) The Federalist/founding papers are redundant making the case to caution people of an ‘over reaching’ government. Hamilton says in No.15, and I’m paraphrasing, the idea of the Constitution is incompatible with the idea of government and therefore a Republic is the only safeguard against an unruly government. No. 16 expands on that and much more. Federal government has to remain small and ‘in check’ to their boundaries/responsibilities….that brings me to my second thought…’The People’….
Second, the founding papers completely empower each citizen – they own the begining and the end of the political process. Our political leaders are turned around in that thinking today. Americans are engaged and ‘owning’ their role to govern…we can/will change the political mindset and landscape in DC and around this great country.
Go Team USA!!

Susan Craig says:
May 19, 2010 at 1:57 pm
That is a symptom, Charles. What I would have liked defined was that rather vague commerce clause that has allowed the Fed to homogenize what was potpourri. Before if you did not like the way Massachusetts regulated its business, you could choose from any of the established States or explore into the territories. Now its Massachusetts or Massachusetts lite.
I would have liked a more elaborated upon clause. My suggestion, States may order commerce within their borders as they see fit. Should disagreements arise between States in the conduct business the Federal will act as Good Faith arbiter to facilitate and promote the smooth conduct throughout the country. Not exactly a legal beagle but I think something like this would have kept the SCOTUS from declaring wheat grown on private property for private consumption under the jurisdiction of the Federal Government by virtue of the Commerce Clause in the Constitution.

Ron Meier says:
May 19, 2010 at 3:59 pm
Too bad the creators of the EU didn’t read the first 20 or so FP before creating the EU. Had they done so, they wouldn’t have let some members in and they would have instituted some kind of enforcement mechanism. More likely, the EU would not have been created, since the prospective initial members would not have approved the sanctions for misbehavior.
re Charles’ comment about the sheer volume of legislation, to say nothing of the thickness of each individual piece, when our legislators run for reelection, they have to demonstrate that they were in attendance for xx% of all votes, the higher the better. If someone has a lower than acceptable percentage, then the opponent runs negative campaign ads demonstrating that the legislator is not doing his or her job. I submit that it might be better if our legislators would spend more time deliberating on the really important legislation and skip showing up to vote for legislation that they know nothing about and that is not critical to survival of our nation. As our Attorney General and Director of Homeland Security have just demonstrated, they don’t even have time to read a simple 10 page piece of legislation (Arizona’s law), yet they feel qualified to speak authoratatively on the law they haven’t read. Our legislators are in similar constraints and likely have staff read certain portions and give them briefings; I doubt they even read legislation they propose.

Carolyn Attaway says:
May 19, 2010 at 4:04 pm
Nickie, I too picked up on the citizen empowerment theme toward the end of this paper. There were several parts that begged to be read out loud, but two statements caught my eye, and I had to read them several times to absorb the impact of their words: “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 . . . . 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.”
The first statement contained the sentence a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. I find this choice of words interesting given that enlightened means to have intellectual or spiritual light; and usurpation of authority means illegal seizure and occupation of a throne. How true do these words ring today that the people must remain vigilant of their government and the laws that are passed unto the citizens themselves less they become subjects to the throne of government through unconstitutional laws and practices? Are we not experiencing a degree of this usurpation of authority today? Is one of the main reasons we gather daily on this web-site is to renew our vigilance and become enlightened with our founding documents?
The second statement reiterates this theme with the words as the natural guardians of the Constitution would throw their weight into the national scale and give it a decided preponderancy in the contest. In Paper 15 Hamilton tells us that the only proper objects of government are the persons of the citizens, so it stands to reason that they would be the natural guardians of the Constitution. And being guardians they would have the decided preponderancy; superiority in weight; power, to defend the Constitution against illegal practices on either State or Federal levels to ensure its authority. We, as citizens of the United States, are charged with this duty.
I find these words amazing.

yguy says:
May 19, 2010 at 4:55 pm
“What I would have liked defined was that rather vague commerce clause that has allowed the Fed to homogenize what was potpourri.”
However vague it may be, there is no way it can be reconciled with Wickard v. Filburn (1942), wherein SCOTUS held that a person not engaging in commerce could be penalized under color of the commerce clause.

Jimmy Green says:
May 19, 2010 at 5:34 pm
Interesting that Hamilton’s belief of state delinquencies in a confederacy would result in civil war.
Yet less than a century latter a civil war between the states would arise under a constitution that Hamilton felt would prevent it.
I believe Hamilton’s desire for a constitution that must be able to legislate over the state and citizens is an implicit understanding of the nature of any true Federal System. The problem is the balancing act between a sovereign state jealously protecting its states rights and an federal government with certain enumerated powers over the sovereign states. Hamilton’s view of the powers of the federal government often seem like a dark cloud on the horizon. Granted the federal government in order to maintain the union has to exercise a degree of control over the states and citizenry.
However this is done via our elected officials in the congress. The States and peoples views are expressed through them such that hopefully any federal legislation is not unseemly harsh on the state or citizens as if they were blindsided. Hamilton’s writings seem somewhat of a dark nature and come across to me as someone who places state sovereignty a distant second to federal prerogatives. However reading the founding documents will show that states vigorously enforcing state rights its necessary to prevent that which Hamilton believes will occur under a confederacy.
Its good that Hamilton recognizes that the states should definitely intervene if the feds legislation becomes a “tyrannical exercise of the federal authority”.
However that’s an extreme viewpoint with most government tyrannies today being a rather long affair that slowly change the country with most of the citizens unaware of the slo-mo tyrannical creep. Interesting read.

Andy Sparks says:
May 19, 2010 at 7:29 pm
Jimmy, I think you hit the nail on the head with Hamilton. Remember he was born and grew up in the British West Indies. He didn’t come to America until he was 17, so he had no loyalty to any particular state. While he was educated and settled in New York, he joined the Continental Army only a few years later. What better place to gain an interstate perspective than in the army. Under Washington’s tutelage, he quickly learned about the deficiencies of the Congress under the AOC during the war in regards to raising troops, supplies, and other necessaries to keep the army going. I think any reference he makes to state power is so to appear not too enthusiastic for a national government. After all, he is trying to convince those moderate anti-federalists to vote for ratification. If it were up to him, he would have preferred a British style government; in fact his detractors referred to him as a monarchist while he headed the Federalist party.

Barb Zakszewski says:
May 19, 2010 at 8:59 pm
Both Hamilton and Madison seemed to have crystal balls at times, with their keen ability to look 100-200 years into the future. Hamilton argued that the Articles of Confederation could eventually set of a “civil war”..Yet 75-80 years after Ratification of the Constitution, the United states was involved in a “Civil War”…the War for Southern Independence. Although this war was considered to be chiefly over slavery, it was a war also for States Rights, for the 10th Amendment..Many of the things Hamilton predicted in Federalist 16 actually came to pass, by then, and that is what got things started.
As for comments made towards the end of the paper, Hamilton is saying that citizens will tolerate a lot from their government, unless government evolves into a tyranny, similar to what is happening today with the Socialist President and Congress we seem to find ourselves with. I believe there is a tie in to what Hamilton says here and the part in the Declaration of Independence that warns when government sinks to absolute despotism, it is our right and duty to throw off such government and provide new guards for our future security.
The more involved I become in this project, the more I can see where the Nation is going now; we must educate ourselves our families and our friends so that we can fight this and reclaim our Great Country!! The Founding Fathers, rather than being irrelevant as many Liberals think, are becoming more relevant with each passing day. We MUST listen to what they have to say.
God Bless this Great Nation!!

William Matthews says:
May 19, 2010 at 8:59 pm
No one has mentioned this, but under the Constitution Senators were selected by their states not like they are elected today. Before a bill could become a law, each of the states two senators had a chance to weigh in on it. In essence the states had actual representatives in the national government and states could actually control much more how their Senators voted. So perhaps when Hamilton is referring to the Constitution being superior he’s also meaning that states get to exercise their influence without needing to individually approve each law?

Jimmy Green says:
May 19, 2010 at 9:00 pm
Thanks for the input Andy. I plan on reading Hamilton’s autobiography in the near future to gain a better insight on him. Sadly as I’m living in the peoples republic of California, the founding fathers and the founding documents are not rated very highly. But there is hope that one day it will.

Susan Craig says:
May 19, 2010 at 9:14 pm
I think we have a lot to thank or accuse Rhode Island for. If they had not refused to consider ratifying any and I do mean any amendment to the Articles of Confederation how different a picture this would be.

Constituting America says:
May 19, 2010 at 11:45 pm
I want to let you know that I have begun a short film with my daughter for my “Daily Behind the Scenes Videos.” Tonight is Part 1. Check it out. The link is on the website on the home page or the link to the YouTube version is on the Constituting America Facebook Page. It’s going to be fun! I direct these and edit them on my computer nightly – with the help of my daughter, of course. The goal of these videos is to enlighten American citizens about our great United States Constitution, our “90 in 90” and our “We the People 9.17 Contest” so, spread the word!
Here we are at Federalist Paper No. 16! I want to thank Marc S. Lampkin for joining us again today. We are so lucky to have your scholarly insights, Mr. Lampkin!
Alexander Hamilton’s quote, “When the sword is once drawn, the passions of men observe no bounds of moderation,” speaks volumes. First of all, it is how Alexander Hamilton died, in a dual of passionate discord with Aaron Burr. Secondly, I can’t help but find relevance in these words regarding the situation in Arizona. The more I read, absorb and learn about our United States Constitution, the more I start seeing all aspects of our current political environment through Publius’ eyes –
their reasoning, their framework – which, of course, is the whole point of our “90 in 90.”
“When the sword is once drawn, the passions of men observe no bounds of moderation,” starts to make more and more sense to me when I witness, with the rest of America, the friction between our “United States”, Arizona and California. It was experienced over two hundred years ago, has happened throughout our history and it is happening today – “faction.” What we are experiencing as a country is a sample of what would have happened if we had not ratified our Constitution. There would have been no way to keep the peace and find a unity in vision and mutuality of purpose.
Thus, my current assessment is that the cohesiveness of a Federal government served and should continue to serve its purpose in certain areas – one of those areas is the defense and protection of her states.
Thus, the question begs the answer. Why hasn’t the Federal government protected her border states? Yes, states have rights, and yes, the Federal government has grown way beyond our founding father’s intentions but in this instance regarding defense, the federal government should have stepped up to the plate. Arizona has been left to fend for herself and is getting abuse from all angles.
Consequentially, we are witnessing state against state – accusations, misinterpretations – faction. Will California boycott her ally? Will Arizona turn her brother’s lights?
“When the sword is once drawn, the passions of men observe no bounds of moderation.”
Let us experience the freedom, uniqueness and independence as individual states yet, the unity of brotherhood as a country. Once the sword is drawn where will the passions end? Discourse is an enticement. United we stand. Divided we fall. Has this not been the theme of these Federalist Papers?
God bless,
Janine Turner
May 19, 2010

Roger Jett says:
May 19, 2010 at 11:45 pm
As I have been reading day-to-day the many comments posted to this wonderful forum, I’ve come to appreciate how well read many of you are. It challenges me to study, learn and evaluate how our nation’s Founders strove to provide us with the best government possible. It was not easy for them to establish it, nor will it be easy for us to do our part to restore what has been largely lost. I too find myself at that point that Susan Craig described earlier today, after having read a lot of the writings from the time of the “Declaration of Independence” through the second term of George Washington’s Presidency, she finds herself squarely between the two factions on the issues of the day. As I have read a number of the arguments presented by Jefferson, Mason and Henry, I find myself influenced by points that they made. I don’t find that troublesome …. I do find it most helpful in obtaining a more balanced understanding and more informed opinion. I don’t always find myself agreeing with all that gets said on this forum, but I believe that the process has challenged me to evaluate what I think is right, true and has caused me to grow a little more strong and firm. Thank you Janine, Cathy and all the rest of you who participate. May God bless you all !

Constituting America says:
May 20, 2010 at 1:35 am
May 19, 2010 – Federalist No. 16 – Cathy Gillespie
A big thank you to our guest blogger Marc Lampkin! Marc, thank you for guiding us today!
I so appreciate all of you who take the time to comment. You often see nuggets of wisdom in these papers that I have glossed over on my first reading, and your posts send me scrambling back to find the phrases you elaborate on.
Two phrases jumped out at me upon my first reading of Federalist 16, though, and they are the same mentioned by Nickie and Carolyn:
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.
“A people enlightened,” ”natural guardians of the Constitution”
“We the people,” are the natural guardians of the Constitution, because as our country drifts from the Constitution, it is “We the people,” who have the most to lose. If we are not “enlightened,” to understand what we had, and have, we will certainly not know what we have lost, and are losing. And our children will understand even less than us. We must not only enlighten ourselves, but enlighten our children, so the torch of freedom may be passed to the next generation of Americans. Watch Janine’s Behind The Scenes Videos starting today, as she teaches her daughter about the Constitution in a several part series! http://www.youtube.com/watch?v=XGpmqkx1_JQ
I am both amazed, and a bit embarrassed to admit how much I am learning through this exercise. I graduated from Texas A&M University with a B.A. in political science, yet I don’t recall ever picking up the Federalist in college. This reading is my first time through these prescient papers. Tonight, I feel empowered that I am becoming “enlightened,” and that the founding fathers considered us – ‘we the people” – to be the guardians of the Constitution. The more I learn, the better I can guard it! And the more I can teach my children! On to Federalist No. 17!
Good night and God Bless,
Your fellow guaridan of the Constitution,
Cathy Gillespie

Dave says:
May 20, 2010 at 1:41 am
Here’s how I see No. 15 and No. 16. Hamilton is laying the foundation of his argument for ratification and basing it on man’s actual experience through history of forming civil governments, human nature, and most importantly for his argument, the actual experience the Americans had with the government under the Articles of Confederation. I need not repeat his parade of horribles here. He had to convince the New Yorkers that the current system was making their lives miserable whether they knew it or not, and that a strong, energetic, centralized, national government was the answer to all their prayers. If they would just stop being so biased towards their narrow, local interests. He assures them that the states will retain their due sovereignty, but the national government will be the supreme sovereign concerning the national objects under its authority.
The new plan would be different in significant ways from the failed confederations of the past. Those alliances always broke down in predictable ways because they were not consonant with human nature. If I may jump ahead an essay, in No. 17 Hamilton tells us:
“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.”
We care more about that which is close to us, and we should. Hamilton wants us to give up some of that local care and concern and cede it to the national government in our own enlightened self-interest. And up to a point I think he’s right.
I would caution vigilance for the corrupting influence of power, for the tendency to be profligate with other people’s money, and mission creep. If the national government had stuck to the plan of being a limited government of enumerated powers, and if it had not spent decades and decades trying, and failing, to be all things to all people, we might not be in the sorry state we are in now.
The Founders saw the states within the new plan as laboratories of democracy. Some states’ experiments would be successful and emulated; other states’ experiments would be colossal failures and be rejected, or at least should be rejected (think CA, MI, and NJ.) In this way, mistakes would stay local and not doom the entire republic. The fiscal black hole some states, cities, and corporations are in has been caused almost exclusively by bad legislative, economic, and business decisions. Bailouts using taxpayer dollars to reward imprudent local decisions creates what economists call a moral hazard and offers exactly the wrong kind of incentives with other people’s money, our money.

Dave says:
May 20, 2010 at 3:15 am
Andy, good points about Hamilton the man. I tend to bask in the glow of his brilliance and genius (he was only 30 or so in the summer of 1787,) but then I force myself to consider what aspects of his psychology and life experiences could be influencing his thoughts on government. Madison’s notes of the Federal Convention have Hamilton laying out his plan on June 18. An executive elected for life with supreme veto power? How could he think that was a good idea?
Jimmy, you had written yesterday, “I would be more interested in Hamilton’s views on what should occur if the Federal government fails to uphold its enumerated powers.” That’s exactly what I’ve been wondering. The three branches of our federal government seem to have come to the conclusion that it’s just too much trouble to get the people to act in their constituent role as the “natural guardians of the Constitution” and amend the Constitution; they, our “agents and trustees” (No. 46) just ignore the Constitution and work their way around it, but they do make sure to pay it lip service at the appropriate times.
With the benefit of hindsight, I am amazed at how often in the papers, Publius warns us of what, to him, was the major threat to liberty. He thought the abuse of power would come from the states. After all, the federal government is a creature of the states or a servant of the states. It could never be the case that the creature would supplant the creator or the master would become the servant. Oh really? And something else that still troubles me in the federal system that they were proposing, with its dual sovereignty in different spheres and even with its guarantee of republican government in the states—What is to be done when a state exhibits tyrannical tendencies and is technically not in violation of the Constitution, but is in violation of the founding principles located in the Declaration of Independence? How was the slavery issue to be resolved? Abortion?
Last thought: For the new federal plan to work, the Framers had to have some presuppositions in mind about man and about the world. Were any of the presuppositions necessary for the perpetual success of the union under the constitution to be ratified? And would it be the case that any state of affairs not including those requirements would spell doom for the union.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 17 – Cathy Gillespie

Federalist Paper 17, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 17, Federalist No. 17

Thursday, May 20th, 2010

What a great discussion we’ve had on Federalist No. 17! Thank you to William C. Duncan for his insightful comments! Dr. Morrisey, thank you for joining us today with your contributions as well!

In Federalist 17 Hamilton addresses the concerns of the anti-federalists by making the case that the national government will not try to encroach upon the states’ rights and powers:

“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.”

For the sake of argument, Hamilton imagines a scenario where the national government might try to overstep its bounds, and explains that “the people of the several States would control the indulgence of so extravagant an appetite.”

The founders had set up the unique and artfully constructed set of checks and balances to keep the federal government from extending its reach past the powers it was specifically given. So, what happened? How could Hamilton have gotten it so wrong? I have been pondering this all day. The answer is that the system the founders so carefully constructed was tampered with. It is ironic that Federalist No. 17 was rendered inaccurate by the 17th Amendment! Like any piece of delicate machinery, once the balance is off, the results go awry.

Hamilton could also not fathom that the national government would desire to control the details of peoples’ lives. He thought it would be too tedious a task for a government more interested in the big picture of “commerce, finance, negotiation and war.” Our country had been founded on personal liberty and the “unequaled spirit of enterprise,” mentioned in Federalist No. 11. It would go against everything their countrymen had fought for, for the federal government to encroach into peoples’ lives and trample their rights, so it was truly hard for Hamilton to foresee.

It is so commonplace today for the federal government to involve itself in the minute details of daily living, that most people don’t realize the balance of government is far off what the founders had envisioned, and the Constitution dictates. It is eye-opening to see the world through Hamilton’s eyes, a time in history when people could not imagine or predict the scope of power the federal government has achieved.

Only by studying the founders’ intentions, and the structure specified in the Constitution, can people understand how far off the path of freedom our country has veered. The Constitution is our road map and our guide, and to head in the correct direction, we must consult the map.

I thank everyone for their continued participation!

Good night and God Bless!

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 17 – Janine Turner

Federalist Paper 17, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Constitutional Amendment XVI, Constitutional Amendment XVI, Federalist No. 15, Federalist No. 16, Federalist No. 17, Federalist No. 17

Thursday, May 20th, 2010

Where did we go wrong as a country that we let the Federal government overtake the states? This was obviously not the intent of our founding fathers. As explained in Federalist Paper No. 16, the communities and local passions were to always be the stronghold against the homogeneous nature that springs from a Federal formation.

Obviously, Alexander Hamilton could envision great commerce and industry from such a fastidious people as Revolutionary Americans, but how could he see the vast transformation of communication and transportation? From his post in the 18th century, the local influences and perspectives were dominant, and the national sways were secondary.

He could not imagine the amazing feats in engineering that would revolutionize transportation broadening the horizons of the people. Nor could he foresee the formidable transformations resulting from the inventions of the telephone, radio and television. With this occurrence, the states lost their uniqueness, the people their distinctness and the federal government gained power – a shift occurred.

But was this enough to open the door for the Federal government to eat away at the core of the states’ powers?
What gave the Federal Government the power to encroach? Perhaps it was the Constitutional Amendment XVI – Income Taxes. What was the incentive that enticed the people to forfeit their individuality and their rights? Subsidies – the spoon-feeding mentality that usurped the American “can do” spirit.

The slippery slope began. Alexander Hamilton stated in Federalist No. 15, “When the sword is once drawn, the passions of men observe no bounds of moderation.”
Perhaps it should be, “When the sword of taxes is drawn, the passions of government observe no bounds of moderation.”

Knowledge is power. With the awareness and education of the true intention of our United States Constitution, the American spirit will be revived and the people will recognize the power of their vote. Our Republican form of government offers the way to rectify.

To quote Alexander Hamilton, “There is one transcendent advantage belonging to the province of 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.”

The criminal and civil justice belong to the states.. something to ponder.

God Bless,

Janine Turner
May 20, 2010
P.S. I thank William C. Duncan for joining us today and for his insightful essay! Thank you, Mr. Duncan!

2 Responses to “May 20, 2010 – Federalist No. 17 – Janine Turner”

Susan Craig says:
May 20, 2010 at 9:35 pm
While I don’t agree with the founding fathers, that only those who own property should have the vote, I see where it has led to some of today’s ills. I think it was Benjamin Franklin who said the republic would be in trouble once people discovered that they could vote themselves other peoples money.

Tim Shey says:
July 21, 2010 at 5:13 pm
If a man abuses his power, the people rise up and fight against that man. If the Federal Government is too powerful and abuses its power, then the people rise up and fight against it (e.g. King George III and Great Britain in 1776).
This Christian lady told me that there was a prophecy given a while back and the prophecy said that “the South shall rise again.” I am sure that it does not mean that the Confederacy will rise again, but that the issue of States’ Rights will rise again. This is happening right now with the Tea Party Movement and all the other people sick and tired of our over-reaching Federal Government.
When the Germans counter-attacked in the Ardennes Forest in December 1944, many people were alarmed and there was general panic. But General Eisenhower saw it as an opportunity for ultimate victory. If Jimmy Carter was a gift to Ronald Reagan, then Barack Obama will be a gift to the Republican who takes the White House in 2012.
Have faith in God and we will see victory.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 17 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton)

Federalist Paper 17, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William C. Duncan 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 17, William C. Duncan

Guest Blogger: William C. Duncan, director of the Marriage Law Foundation

Thursday, May 20th, 2010

One of the most significant criticisms of the proposed Constitution was that it would eviscerate the autonomy and authority of the individual States. As Alexander Hamilton described it, the argument was that the Constitution “would tend to render to 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.” While some today would not think of that as a weakness, this criticism was important because both the Framers and many of their contemporaneous critics believed that functioning States were crucial to ordered liberty. Thus, the Constitution provided that of all the appropriate objects of government authority, only a small and specifically identified set would be delegated to the national government, by the States.

So, in Federalist 17, Alexander Hamilton could respond to the criticism by arguing that the threat actually goes the other way (that the States might interfere with the proper ends of the national government). He supported his arguments for the likely predominance of State power by noting that: (1) the enumerated powers of the national government (commerce, finance, negotiations, war) will likely be very alluring targets for people driven by ambition so they won’t bother with the larger set of issues regulated by States, (2) meddling in local concerns would likely create enough trouble for the national government as to make doing so undesirable to national officials, (3) the people of the States would not likely stand for the usurpation and they are the constitutions of the national government.

In support of this last point, Hamilton notes that it accords with human nature: “It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object.” Thus, “a man is more attached to his family than to his neighbourhood, to his neighbourhood than to the community at large” so “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.” The States also have the important advantage of being responsible for matters “of criminal and civil justice” which make them “the immediate and visible guardians of life and property.” The national government, dealing only with “more general interests” that are “less immediately under the observation of the mass of the citizens” is “less likely to inspire a habitual sense of obligation, and an active sentiment of attachment.” Since the States “will generally possess the confidence and good will of the people” they “will be able effectually to oppose all encroachments of the national government.”

Hamilton’s analysis is persuasive but might seem a little alien in a climate where the national government increasingly dominates not only the objects of proper governmental authority but areas of life the Framers would not have contemplated government would regulate. Nevertheless, Hamilton does hint at a motivation for this dramatic incursion of the national government. Thus he notes that hypothetically “mere wantonness, and lust for domination” could lead national leaders to desire to interfere in State prerogatives. He believed, however, that the political process would turn back any such incursions since the States, with the support of their citizens, would “control the indulgence of so extravagant an appetite.”

Why has this check not been more effective? Perhaps it would have been if the sole threat to the notion of a national government of limited powers was the personal ambition of national leaders and others who might have a financial stake in government functioning. A more menacing challenge, however, was developing in Europe at the time of the Framing but which had not taken root in the fledgling United States. This was the emergence of ideology and its attendant schemes for improving not only the administration of traditional government functions but rather human nature itself. The scope of such an ambition obviously would not be confined to interstate commerce and international relations but would also contemplate the objects of State governments like criminal and civil justice. In this project, the States have too often been complicit in order to secure largesse from the national government. Then, as the province of the power of the national government expanded, the subjects which might tempt ambitious individuals and financial speculators multiplied and created interest groups with a strong incentive to continue national involvement in traditional State concerns.

The best hope to change this state of affairs is a return to the modest scope of national power and the reemergence of robust State authority.

Mr. 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.

33 Responses to “May 20, 2010 – Federalist No. 17 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton) – Guest Blogger: William C. Duncan, director of the Marriage Law Foundation”

Carolyn Attaway says:
May 20, 2010 at 8:06 am
I appreciated Mr. Duncan’s insight into Paper 17, and realized as I read his analysis of Mr. Hamilton’s writing, that where the Paper was to warn of the dangers a very robust State may have on National authority; today we see the reverse to be true, where a robust National authority usurps the State’s power.
During Hamilton’s time, the men in Congress served part-time and worked a great deal in the private sector. So when Hamilton writes ‘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’, I realize how far we have come from the framers original intent. Today our representatives in Congress are full-time delegates; many never having worked in the private sector, making laws over citizens with no sense of reality as to what it takes to survive in mainstream America.
This part of our framework I fear is broken. I believe our founders never intended Congress to be so removed from their citizens, taking on the role of knowing what is best for their constituents, and making laws without their consent. The Great Cement of society has cracked.
I enjoyed Hamilton’s reference to the feudal systems of Great Britain. Being an avid reader of that period of time, I could visualize the struggles between the feudal baronies and clans, not only against the crown, but with each other, and within each group of people. Hamilton writes ‘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.’
Again, during Hamilton’s time, I believe this statement had greater import, but today with the States giving the Federal Government so much of their power, they do not retain a great deal of the confidence and good-will of their citizens. Many of their citizens do not realize that a lot of the entitlements that they receive from the State are due to monies being received from the Federal Government in exchange for State authority. And if they do realize it, how many of them understand the consequence?
With the ratification of the 17th Amendment, I believe the power of the State diminished.

Charles Babb says:
May 20, 2010 at 9:00 am
Thank you Mr. Duncan, for that synopsis and for your analysis. Hamilton seemed to miss one “fact of human nature” regarding “its affections”; that is the one of individual and collective greed. “In this project, the States have too often been complicit in order to secure largesse from the national government.” We’ll give back some of your citizens’ tax dollars, for school construction as long as you agree to teach your children what we tell you to teach them.
And it could not be said better; that, “The best hope to change this state of affairs is a return to the modest scope of national power and the reemergence of robust State authority.”
What is needed now is a plan to accomplish that goal.

Susan Craig says:
May 20, 2010 at 10:52 am
While I grant that Hamilton’s point of view has merit from the divisiveness that comes from internal squabbling. But what happens to the country when the abuse comes from the other direction? What happens when the greed and power hunger abuses the intent of the enumerated powers? In Federalist 17, Alexander Hamilton responds to this by arguing that the threat actually goes the other way (that the States might interfere with the proper ends of the national government). He supported his arguments for the likely predominance of State power by noting that: (1) the enumerated powers of the national government (commerce, finance, negotiations, war) will likely be very alluring targets for people driven by ambition so they won’t bother with the larger set of issues regulated by States, (2) meddling in local concerns would likely create enough trouble for the national government as to make doing so undesirable to national officials, (3) the people of the States would not likely stand for the usurpation and they are the constitutions of the national government.
Today I don’t see much of that but I do see a lot of usurpation of State, local and individual rights by the Federal Government, this I think is a result of ignorance and laziness on the part of the individuals.

Linus Behne says:
May 20, 2010 at 1:04 pm
Boy, I sure wish that Alexander Hamilton was correct about the national government staying out of the business of the states. Hamilton would be shocked if he came back to life today. The Federal government wants to stick its’ nose into everything.
One of my favorite lines from Fed 17: “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”.

William Duncan says:
May 20, 2010 at 1:54 pm
Thank you for these excellent comments. I am much from your responses and am glad the essay sparked these thoughts.
I agree that our situation now is pretty grim in terms of centralization of power in the national government. One thing that I believe would make a difference is for states and individuals to resist the temptation to accept federal funding in some instances.

William Duncan says:
May 20, 2010 at 1:56 pm
The first sentence in the second paragraph of my comment should have read “I am learning much.”

Susan Craig says:
May 20, 2010 at 2:08 pm
How I wish that today’s iteration of our ‘Constitutional’ government would think that the usurpations were “nugatory” (of little or no consequence: trifling, inconsequential: having no force: inoperative: synonym – vain)

Carolyn Attaway says:
May 20, 2010 at 2:09 pm
Susan, I agree with you to some degree on the ignorance of the individual due to the lack of correct US History being taught in the public school system, however; I do not concur with the word laziness. The majority of Americans today are very hardworking people, many taking several jobs to keep afloat, and I think that is the crux of the problem. So many people are on auto pilot in political matters of our country, and do not have the time nor energy to keep up with all that is happening today. Many people work long hours and only look for a small reprieve from their work by the end of the day/week. Others honestly thought that the problems we are experiencing today never could happen.
I heard a current poll today that asked if you were satisfied with the direction the country is going. Only 23% of the people polled agreed, the rest were deeply dissatisfied. I think we can safely assume that the 23% is from the left who have very liberal agendas.
I believe with every day that goes by, more and more people are finding the energy and the courage to take a stand. Now if we could get our representatives in Congress to do likewise.

Maggie says:
May 20, 2010 at 2:11 pm
I don’t think that Hamilton ever envisioned things going so far in the opposite direction because it has always been the American Spirit to work hard for what we have. We have become a nation full of people with our hands out. When you expect others to take care of your every need without working for it yourself, you give up many rights in return. We the People have handed our rights over, slowly but surely because we have become lazy and complacent.

Ron Meier says:
May 20, 2010 at 2:43 pm
As others have noted, the current situation is greatly different from what could have been anticipated 200 years ago. States have allowed themselves to have their authorities and powers over certain areas of responsibility be minimized by federal mandates on a whole host of areas. As a consequence, the states have allowed themselves to become dependents of the national governmennt. Today, we see that many of the most populous and powerful states are in a state of almost permanent weakness, due to their own fiscal mismanagement, and thus are not able to take back what the federal government has taken away; they are responsible for all that is wrong in their states, but the federal government holds the reins of authority, and the states have no power to correct anything. Effectively, the states have been neutered in small bites by the feds.
Therefore, it is now up to the people. It seems that many of us have intuitively realized that the states cannot and will not fight back, and that is the genesis of the tea party movement. This movement is unfolding and untested, and we won’t know if it can effectively take back what has been taken from us over a hundred years. I remember Warren Buffett saying recently that “we have been selling our country to foreigners a little bit at a time.” Indeed we have; we’ve also been selling our individual and states’ rights a little bit at a time. Each tiny step didn’t hurt at all, so we kept selling. Now, while the individual steps were no problem, the cummulative effect of those tiny steps is killing us. Kinda like smoking; pleasurable over many years, but fatal sooner than hoped.

Will Morrisey says:
May 20, 2010 at 3:06 pm
I think that Hamilton’s key point is that the original design or structure of the U. S. federal system gave the states the means of resisting federal-government encroachment. The centerpiece of this was the Senate. Recall that the senators under the original system were not elected directly; they were appointed by the state legislatures. Quite often, those legislatures would sent `their’ man to Washington with expressly-stated directives on how to vote. Contrast this with the system brought in by the Progressives, under the Seventeenth Amendment. From then on, a U. S. Senator simply did not need to worry much about any directions or resolutions from his/her state legislature. A Senator’s political `power base’ is quite independent of the legislature of his home state. This is one major reason why federalism doesn’t work as intended. It’s not Hamilton’s fault, or the fault of any of the founders. It’s a much later development.

Constituting America says:
May 20, 2010 at 3:50 pm
Where did we go wrong as a country that we let the Federal government overtake the states? This was obviously not the intent of our founding fathers. As explained in Federalist Paper No. 16, the communities and local passions were to always be the stronghold against the homogeneous nature that springs from a Federal formation.
Obviously, Alexander Hamilton could envision great commerce and industry from such a fastidious people as Revolutionary Americans, but how could he see the vast transformation of communication and transportation? From his post in the 18th century, the local influences and perspectives were dominant, and the national sways were secondary.
He could not imagine the amazing feats in engineering that would revolutionize transportation broadening the horizons of the people. Nor could he foresee the formidable transformations resulting from the inventions of the telephone, radio and television. With this occurrence, the states lost their uniqueness, the people their distinctness and the federal government gained power – a shift occurred.
But was this enough to open the door for the Federal government to eat away at the core of the states’ powers?
What gave the Federal Government the power to encroach? Perhaps it was the Constitutional Amendment XVI – Income Taxes. What was the incentive that enticed the people to forfeit their individuality and their rights? Subsidies – the spoon-feeding mentality that usurped the American “can do” spirit.
The slippery slope began. Alexander Hamilton stated in Federalist No. 15, “When the sword is once drawn, the passions of men observe no bounds of moderation.”
Perhaps it should be, “When the sword of taxes is drawn, the passions of government observe no bounds of moderation.”
Knowledge is power. With the awareness and education of the true intention of our United States Constitution, the American spirit will be revived and the people will recognize the power of their vote. Our Republican form of government offers the way to rectify.
To quote Alexander Hamilton, “There is one transcendent advantage belonging to the province of 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.”
The criminal and civil justice belong to the states.. something to ponder.
God Bless,
Janine Turner
May 20, 2010
P.S. I thank William C. Duncan for joining us today and for his insightful essay! Thank you, Mr. Duncan!

Susan Craig says:
May 20, 2010 at 4:09 pm
The ‘laziness’ I was alluding to was not that of hard labor but of intellect and inquiry. Our propensity to go along to get along. The laziness is in trusting what the ‘talking heads’ and politicians say not digging into the details of what is behind the pretty sounding titles and sound bites. My current example of this is the trust we had when the ‘talking heads’ and politicians said that the passed version of “Health Care” [prime example of a misleading title] did not contain a public option – THEY LIED! It is there just buried in the care of the Director of the Office of Personnel Management (Section 1334, pages 97-100).

Dave says:
May 20, 2010 at 4:24 pm
Carolyn, well said. You got me thinking about how different public officials and citizens were in Hamilton’s time compared to today. Citizens were probably not as mobile back then, so when they settled on a place, it was a place where they would invest considerable time and resources. Early Americans must have been very attached and loyal to their local communities and states. They knew that any public improvements would be improvements they would enjoy for many years, so public projects were heavily supported locally (no stimulus money needed back then.) How loyal to their local communities are today’s representatives of the people. They are in Washington more than their home states. They won’t even meet with constituents for town hall type meetings. They vote for social policies even when their constituents are against them 5 to 1 or even 10 to 1. How loyal were the Clintons to Arkansas? How many politicians sell out their states to obtain a federal post? From how many laws do the federal legislators exempt themselves? Arlen Specter wanted power so bad he switched parties and abandoned any principles he may have had.
As I read No. 17, I kept writing in the margin “wrong.” Hamilton had certain expectations of how things would play out. Evidently modern man has become much more imperfect and degraded than Hamilton could ever conceive. It’s obvious to me Hamilton has a blind side. He cannot envision the general government being the source of infringements on individual liberty. Granted the states at the time were not bastions justice and magnanimity, and something had to be done.
Hurray Charles. I’m sick and tired of what Ronald Reagan, many years ago, called the money merry-go-round—citizens compelled to send their hard-earned tax dollars to Washington, only to have it trickle back to their state at the whim and behest of federal bureaucrats. Federal money is for FEDERAL PROJECTS duly enacted that benefit the whole republic. Spending federal dollars on non-federal projects is unconstitutional.
Reps have a duty to protect their state’s enlightened self-interest and constitutional sphere of state authority on behalf of their constituents. This duty I’m suggesting is not to imply an abrogation of a state’s federal responsibilities, nor is there any implication to disparage or diminish the constitutional prerogatives of the federal government or those of the 49 other states. What cannot be allowed to continue is for the states, and the state actors, to continue to accept the role of mere agents for the federal government. Madison in Federalist No. 46 puts the agency relationship in the proper perspective: “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.” In a nutshell, local money, to the greatest extent possible, should stay local for local purposes.
My thanks to Mr. Duncan.

Dave says:
May 20, 2010 at 4:44 pm
Thanks for bringing up the Seventeenth Amendment Professor Morrisey. What was it that sold the Amendment to the states? Why would they give up such a key component of federalism and a check on the passions of the people’s house with a different scheme of composition for the senate?

Carolyn Attaway says:
May 20, 2010 at 4:57 pm
I think it is more stupid arrogance of our elected officials. When in any other time of history would you have heard these responses:
“Many senators and congressmen have taken offense to the idea that they read these bills.
Representative John Conyers didn’t know what the point was in reading it because he wouldn’t understand it anyway.
House Majority Leader Steny Hoyer laughed at the idea of reading the health-care bill saying, “If every member pledged to not vote for it if they hadn’t read it in its entirety, I think we would have very few votes.”
Representative Henry Waxman admitted he didn’t know the details of his own Cap and Trade bill.
And Senator Arlen Specter said they couldn’t read the whole bill, because they have to “make adjustments very fast.” Link:http://www.redcounty.com/note-representatives-us-constitution-should-be-your-guide
More constituents knew what was in the HC Bill than Congress did. I do agree many constituents are lazy when it comes to researching their candidates before voting for them; but hopefully this Novemeber that won’t be a problem!

Dave says:
May 20, 2010 at 5:48 pm
Susan, nihil sub sole novum (nothing new under the sun.) Jefferson had this in the Declaration of Independence: “all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.” Hard-working Americans have been hard at work supporting themselves and their families. As individuals they give time and money to their churches, charitable organizations and to the community. They never saw the slow switch when public offices became places of profit instead of places of honor. Hard-working Americans have been too busy to be political activists and “organizers.” I think they’re realizing quickly that they cannot afford to be too busy too much longer.
I think the masses have become too accepting of pronouncements from a self-anointed elite class. Universal healthcare? Let’s see, Social Security, Medicare, Medicaid, PGBC, Amtrak; failure, failure, failure, failure, and failure. Why would anyone think the government being everyone’s doctor is a good thing?
The moral fabric of Americans having become frayed, Americans have succumbed to the siren song of the free lunch. Too many Americans think it is morally acceptable to have others provide for that which they can, but refuse to, provide for themselves. I love Janine’s
line about America being built by Americans, not with their hands out, but with their hands at work. Contrast that with Nancy Pelosi’s recent utterance about the healthcare bill: ““We see it as a entrepreneurial bill – a bill that says to someone, if you want to be creative and be a musician or whatever, you can leave your work, focus on your talent, your skill, your passion, your aspirations because you will have health care.”
So, if the marketplace has determined that you really suck at something, no worries, the taxpayers will subsidize your “artistic efforts.”

Jimmy Green says:
May 20, 2010 at 6:43 pm
Hamilton’s arguments that the Federal Government would never usurp the States sovereignty in its laws simply due to the lack of interest or as Hamilton states “can never be desirable cares of a general jurisdiction”. is something I agree with not because of a lack of desire by the fed’s but rather a restraining system of checks and balances working properly to enforce this restraint. Power generally begets more power when it can and Hamilton knew this so a simple belief the Feds would have no further interest to usurp state sovereignty regardless of a constitution seems week at best.
This paper seen in the perspective that the constitution will work as written would in effect allow everything Hamilton wrote in essay 17 to work as so written. In that context I agree with Hamilton and we could rewrite essay 17 as essay common sense.
Our attachments are greater to those nearer. Our bias would be towards our State. Even the state criminal and civil laws or justice will bind the people to their states. “Unless you’re guilty.” Okay all common sense.
The exception is Hamilton’s belief that the feds need to worry more about the states encroachment on the fed. The congress will be enacting “federal” legislation and since the “federal” courts will determine the constitutionality of the “federal” laws vs. the states.
I would have thought this alone would give Hamilton pause in his belief on the reality or not of state encroachment.
Hamilton upbringing and early adulthood probably colored his view differently from the average Americans as some have pointed out to me.
Also the essays were written to achieve consensus in New York on ratifying the constitution so some liberties may have expressed Hamilton’s desire but not actual beliefs.
I’m curious to know if Hamilton believed there was a threat to state sovereignty or if he cared. He understood the corrupting influence of power. The drive of power for powers sake and the inherent jealousy and ambitions to abuse the common man in pursuit of power. Yet he seems devoid of understanding that when the Federal Government is left to determine the constitutionality of any law against a sovereign state through the federal governments own federal courts that your only asking for trouble. The final arbiter of constitutional law is the Supreme Court. Just a bunch of federal “lawyers” sitting around deciding what they believe is write or wrong. If they follow a fairly strict interpretation of the constitution then were all reading from the same play book. Life is fine, the sun shines and the bees buzz. It’s when decisions based on egos or the sudden finding of a hidden meaning in the constitution that no one before them found or god forbid “I want to leave a legacy”. Then the rule book is always changing and we start to look like those feudal systems Hamilton discussed. This was an inherent danger the founders overlooked that we need to remedy today less we move further away from the founding documents.

Susan Craig says:
May 20, 2010 at 8:17 pm
There’s the rub. (to quote a famous Dane). What we have at federal level is not the deliberative body it was envisioned to be. They are trying to be all things to all people and being none to everybody. They are reactive thinking [and I use the term loosely] that we being an instant society need everything done yesterday if not sooner.

Roger Jett says:
May 20, 2010 at 8:34 pm
Dave, You asked earlier in reference to the 17th Admendment, ” what was it that sold the Admendment to the states?”. I think the answer to that question is that it was the desire of the people. Overtime their was enormous dissatifaction over the process of having U.S. Senators elected by state legislatures. Pressure was exerted on both the U.S. Congress and upon the state legislatures to allow their direct election by the citizens. Congress resisted, but state legislatures acquiesced to the will of the people. By 1912, (29) state legislatures elected U.S. Senators via state referenda. It was only after the state legislatures were on the verge of achieving a two-thirds majority in a movement to call for a convention for a constitutional admendment, that congress relented and proposed the 17th Admendment. The Admendment was ratified by 37 out of a possible 48 states with only one state explicitly rejecting it.

Susan Craig says:
May 20, 2010 at 8:46 pm
I don’t know but when it was briefly covered in either my high school or college history courses I think the selling points were supposedly “We the people” are supposed to be the final say in our ‘democracy’ (note how the fact we are a representative republic is not to be spoken) so why should there be another body of our ‘betters’ choosing the most powerful position in the legislature. Somehow they neglected to point out it is the directly elected representatives who have the power of the purse and that legislation at least nominally is to originate from there too.

Will Morrisey says:
May 20, 2010 at 9:47 pm
There had been numerous attempts to amend the Constitution to require direct election of senators; the first such attempt was in 1826. By the time the amendment was passed in 1912, 29 of the 48 states had direct elections `in effect’; that is, they had nonbinding elections, but the state legislators pledged to vote for the top vote-getter. Amendment 17 is one of the Progressive-era amendments; as one would expect, the argument was that democracy in principle should involve direct popular election of legislators. The Heritage Guide to the Constitution has a good, short account of the matter.
Janine Turner adds an important point about the income tax amendment, passed around the same time. These two amendments were characteristic moves of Progressivism: If you are out to build a centralized, modern state, you need big revenue source, such as an income tax (mere tariffs won’t do); in addition, you need political structures that do not in any way depend upon the will of the subordinate political structures in the system. This sets up a system that appears to be more democratic than its predecessor (and in some respects is more democratic) while at the same time funding a bureaucracy that will effectively serve as an UNelected `fourth branch of government’–that is, as a new and oligarchic element in the regime.

Roger Jett says:
May 21, 2010 at 12:55 am
Dr. Morrisey, Many seem to be in agreement that the 17th admendment was a poor decision. I’ve tried to listen and remain open on the matter, as I have evaluated the various arguments for and against it’s ratification. I have to entertain thoughts about where would we be now if we still left it up to the state legislatures to determine who represents in the Senate. Who can say what impact the 17th Admendment has had in the last 96 years or so, but certainly there has been some effect caused by it. What that might be is speculative at best. One point however is that the legislative landscape at the state level has been dominated by one party consistently for a long, long time, while at the national level there has been substantially more balance between the parties in the U.S. Senate. I don’t want to argue that we are always better off if a particular party is in the majority. However, I believe most people recognize that when we have a party that has too large a majority for too long a period of time, then abuses occur. Many Americans breathed a little easier when the balance of power shifted ever so slightly in the Senate this past January. If Article I, section 3, were still in effect , with partisan politics as it is, what would be the status in the Senate. We currently have Republican control over 14 state legislatures and Democrat control over 28 state legislatures. In seven state legislatures neither party controls and apparently Nebraska’s Legislature is considered nonpartisan. In my mind, I see this scenario resulting in at least 56 Democratic Senators and at least 28 Republican Senators, with a lot of contention transpiring in the remaining 8 states over how to decide who gets the remaining 16 Senate Seats. I for one am glad it’s the people who decde.

Dave says:
May 21, 2010 at 12:59 am
This is better than a college seminar. Thanks for all the great comments about the 17th Amendment. I think the amendment disrupted the balance the Founders’ tried to achieve in accommodating the different faculties of men and hence different material conditions as Madison wrote about in No. 10. The Senate seemed to be designed to keep the levelers at bay. But now you have two lower houses, one of which has a 6-year term–let the great leveling begin, for Madison tells us that “the most common and durable source of factions has been the various and unequal distribution of property.” (No. 10) To “the People” of the populism movement who wanted a senate that looked like them, I have one thing to say–”How’s that working out for you? A few years back a study was done of the financial wealth of senators and found that 40 percent of them were millionaires. Not quite a mirror image of the general populace.
Isn’t getting rid of the aristocratic leanings of the senate like Hamilton’s example of when the sovereign and the common people “effected a union between them fatal to the power of the aristocracy[?]” In this context, I can’t help thinking about the title of a history book on the Russian Revolution by Orlando Figes–”A People’s Tragedy.” The people always think they’re going to come out way ahead and they never do.
As I read more and more about our early republic, I’m troubled with a recurring thought–Have we become a people incapable of governing ourselves?

Susan Craig says:
May 21, 2010 at 8:18 am
The more we push self-esteem over self-accomplishment and allow “the devil made me do it” instead of insisting on the self-determination of ones actions the less governable we become. Governance begins with self.

Will Morrisey says:
May 21, 2010 at 9:09 am
Roger Jett makes a key argument. My point is simply that one can’t have two opposite things at once. That is, you can’t have federalism as “The Federalist” conceives it and also have the popular election of senators that has brought greater representation to the Republican Party in the Senate–unless you figure out some other institutional device that would shore up the states by giving them a more direct voice in the federal government. Alternatively, under a system of renewed control of state legislatures over the Senate, Republicans would need to take state legislative elections much more seriously and work to win majorities in them. There would undoubtedly be much more media focus on such elections if more were at stake in them. When it comes to state legislative elections, maybe Republicans have reaped the harvest of their own inattention.

Dave says:
May 21, 2010 at 10:31 am
Roger, thanks for your insight. But the people did decide before the 17th Amend., it’s just that under the framers’ plan they decided indirectly by electing the local legislators. The senate was to be the repository of the accumulated wisdom of the nation. It was set up to throw cold water on the heated passions of the lower house. They were supposed to be the best and the brightest; an aristocracy of merit not heredity (if my ancient Greek does not fail me, I think aristos means best or most noble.) The unique concerns of the senate laid out in the constitution were far removed from local concerns. Treaties, foreign trade, federal appointments, and national security were not what the common people were thinking about on a day-to-day basis–they wanted to know if the crops and animals were taken care of.
I haven’t had a chance to read up on the 17th Amend., but my guess is that there had to be corruption, or abuse of power of some kind, to upset the people of the time.
The American people of the 21st century are too ignorant of the long-term impact of their ill-considered public policy desires. Our rights of private property will always be sacrificed on the altar of democracy. If the masses can confiscate the wealth of the few through the use of government under the color of “social justice,” “economic justice,” “environmental justice,” and “shared responsibility,” they will. The senate was supposed to be populated with disinterested statesmen of integrity and honor–closer to Franklin than Franken. The civic knowledge landscape of the American electorate and the elected is not a pretty picture. The Intercollegiate Studies Institute’s (www.isi.org) reports for the last few years present a dismal, horrifying dumbing down of Americans. We’ve gotten to the point where someone like me, just a common man, could now be seen as an elitist.
Just give the people their bread and circuses (panem et circenses) and the individual rights and liberties of others can be trampled without notice or concern to the long-term detriment of all.

Dave says:
May 21, 2010 at 10:57 am
Susan, we do irreparable harm to the individual and his potential to lead a meaningful and fulfilling life when we show such little respect for his free will and his autonomous self-determination by not holding him accountable for the consequences of his actions.
I got an idea. If anyone wants a bailout, they must seek it from family, friends and willing strangers. The anonymity of individual and corporate welfare payments lacks the transparency to make people accountable. There’s no sense of shame, no sense of honor; just entitlement. It’s so easy to spend other people’s money.

Susan Craig says:
May 21, 2010 at 1:23 pm
Dave, that is my prime objection to a majority of national welfare programs. It subtly tells the recipient that they can’t make it therefore they need to be cared for. Enslaving those take the ‘entitlement’.

Dave says:
May 21, 2010 at 2:28 pm
Susan, to me it’s even more insidious than simply telling the recipients that they can’t make it. The “welfare” is sold as something they are entitled to because their situation came about through no fault of there own–certain external constraints kept them from living a life of excellence. But for certain classes of people holding the recipient back because of prejudice, monopoly power over capital, or any other made up reason our recipient would be the next Edison or Gates. The system allows people to forget that before the government can “benefit” certain individuals, it must necessarily deprive others. A government has nothing prior to taking from the governed.

Roger Jett says:
May 21, 2010 at 7:50 pm
Dave, I find that what Dr. Morrisey and you have had to say today has great merit and serves to help us focus more upon the real underlying issues and less upon the “appropriateness” or, perhaps the “inappropriateness” of the 17th Admendment. The Founders sought to preserve sovereignty to the states and to the people in those areas which were not specifically enumerated to the federal government. I believe we each agree that to the detriment of America we have drifted substantially away from where the Founding Fathers intended for us to be . In my opinion some of that drifting may have been the result of unrealistic expectations on their part. After all, much that they attempted was experimental and on a grand scale. However, while they may have been mistaken in a few of their methods, they proved to be overwhelmingly correct in their concepts, precepts and principles. Our goverment as built upon our Constitution, has withstood many tests over a period of time that is unequaled in history. However, I believe I’m on target when I say that there is a consensus that we are in grave danger of losing our republic form of government. We face many difficulties. By way of what Dr. Morrisey calls a Fourth Unelected Branch of the federal government (bureaucracy), the executive branch is managing to usurp power from the legislative branch. By judicial activism, the judiciary branch further usurps power from the legislature as they legislate laws from the bench. Of course as has often been discussed already, the federal legislative branch in conjunction with the federal judiciary has routinely overriddened the sovereignty of the state governments. We the people have grown selfish, complacent, apathetic and in increasing numbers more and more dependent upon the federal government. Such actions and lack of action invites bondage. We still have a “republic” and it’s time for us to wake up, cast off our fears and fight to save it.

Kay says:
May 21, 2010 at 11:21 pm
I have nothing to add, except my thanks for all the bloggers and essayist Mr. Duncan. As one of you mentioned, this is better than a class. I read today one little ray of hope: the Constitution is selling like hotcakes. The Heritage Foundation, the Cato Institute, and even our Congressional offices who have free copies are experiencing a rush of requests for the Constitution.

Dave says:
May 22, 2010 at 9:24 am
Roger, I wholeheartedly agree. Thanks for taking the time to write so many well thought out comments for this project. You used the word “drifted” and that is a word that has found its way into my vocabulary with increasing frequency. Paul Rahe used it in the title of his book Soft Despotism, Democracy’s Drift. I haven’t read it yet, but it did get me to read selections of Tocqueville–check out the short chapter six of part four in volume two entitled What Kind of Despotism Democratic Nations Have to Fear. Tocqueville foresaw the Nanny State and the Administrative State 175 years ago.
I’m not well read enough to see the big picture yet, but I’m going to keep reading.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 18 – Cathy Gillespie

Federalist Paper 18, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 18, Federalist No. 18

Friday, May 21st, 2010

Another week of 90 in 90: History Holds the Key to the Future draws to a close! Thank you to Andrew Langer for your participation as a Guest Constitutional Blogger! And thank you to everyone who is posting such well thought out and researched comments.

In Federalist 18, the founding fathers are telling us that History, indeed does hold the Key To the Future, as the name of this blog indicates.

Not even a fourth of the way through the 85 Federalist Papers, and we have all been amazed at the foresight of the founding fathers. They seem to have an uncanny ability to see the future. We know they did not have a crystal ball or special powers, so what was their secret? The answer is that they were extremely well read students of history, philosophy, and human nature. They took the time to think; they actually thought about the future, and used their knowledge to predict outcomes if certain paths were chosen.

Today, we live in an instant gratification society. If a problem is not immediately upon us, it is not dealt with. If a problem looms twenty years away, we do not want to address it. Our founding fathers had a much longer vision looking ahead, and looking back.

The depth of knowledge of the founders about ancient civilizations, and the lessons drawn from them is fascinating. As Juliette, Janine’s daughter observed, they knew all this and didn’t even have Google!

The founders took the time to study these ancient civilizations so they could draw the important lessons from them: the necessity of a closer union so the strong states would not tyrannize the weak, that “a weak government, when not at war, is ever agitated by internal dissentions, so these never fail to bring on fresh calamities from abroad,” that a stronger union can repel invaders.

Somewhere along the way our society has lost respect for history. People want to alter it, to make it fit their world view. In arrogance we believe we are immune from the mistakes of the past and don’t take the time to analyze events or draw lessons from them.

In today’s comments, Ron made an important point – to change this culture of disrespect for and ignorance of history, we need to take action! He encouraged us to “find some historical event that you’re passionate about, do the research, and tell the story. Service clubs need speakers for every week’s meetings, so there are plenty of opportunities. We just have to do it. Taking action is important. Exercises like this should stimulate us to some action; if we finish this FP exercise and go back to living our lives as we did before, then we’ve gained knowledge, but done nothing to rediscover our heritage or, more importantly, to help others do the same.”

Ron is so right!! As we read the Federalist, our eyes open to many truths, one of which is the importance of looking at lessons from history as we move forward. We need to find ways to take action, and share what we are learning with others. Whether it is Ron’s idea of speaking to civic clubs, or simply forwarding a link to this blog to your personal email list, you can make a difference in opening people’s eyes to the founding principles of our country, and the importance of knowing the United States Constitution.

Thank you to each of you for all you do for our Nation!

Good night and God Bless!

Cathy Gillespie

One Response to “May 21, 2010 – Federalist No. 18 – Cathy Gillespie”

Barb Zakszewski says:
May 24, 2010 at 6:39 pm
I like Ron’s idea too. We must take the knowledge we are gaining and share it, or it will just grow old and stale in our brains. I’ve been talking to everyone I can think of, informing this of this website and the knowledge I’m gaining…I actually write a small column for the monthly newsletter of a club I belong to and have told our editor of my plans to start writing a summary of the what’ I’m learning here each month!! I’ve constantly encouraged my club’s members to become active, and as Janine says, “knowledge is POWER!!!”. Let’s all spread the word!!

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 18 – Janine Turner

Federalist Paper 18, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 18, Federalist No. 18

Friday, May 21st, 2010

Today my 12-year-old daughter read Federalist Paper No. 18 to me as I was driving her to ballet class after school. As she was reading, she would stop to look up words she didn’t know and yet had some understanding of the culture because she has been studying Latin and Greek this year. Her first comment was, “Wow, he knew all this and he didn’t even have Google!”

I agree with our guest Constitutional scholar, Mr. Andrew Langer, (I thank you for blessing us with you scholarly insights again today, Mr. Langer!) that one of the Providential aspects of our country’s founding and birth of the United States Constitution is that the deliberators and creators were so well read and prolific in their knowledge.

In the book I mentioned earlier this week, Miracle at Philadelphia, it recounts how James Madison asked Jefferson for a few books, “Whatever may throw light on the general constitution and droit public of the several confederacies which have existed.” Jefferson sent some, by the hundreds. Madison instantly threw himself into the study and wrote essay after essay in preparation for the challenge that lay ahead.

Thus, coupled with extreme knowledge and intellect was another most needed ingredient, passion. Carolyn Attaway quoted Churchill in her blog today about how people don’t rise to the occasion until it is too late.
In this regard I actually have a spark of hope. I see and sense an awakening of the American patriotism, passion and practicality. Americans are taking action, speaking out and yearning for truths and our founding American principles – just like all of you great patriots who are dedicating your time to join our “90 in 90.”

Americans have a keen sense of right and wrong, justice and injustice. It is in our blood. We will rally and rise to the occasion. The prevailing theme of these Federalist Papers – union – stimulates our cause and fortifies us with knowledge and inspiration.

I thank you for joining us. Please continue to spread the word and please reach out to your children and/or a child you know and teach them about the history of our great country. History proved to be a beacon for Publius and our American history will prove to be the beacon for us.

God Bless,

Janine Turner

9 Responses to “May 21, 2010 – Federalist No. 18 – Janine Turner”

Dawn says:
May 21, 2010 at 8:08 pm
Well said, Janine! Your point about the depth of learning and knowledge of the Founders is something I was pondering just the other day. These were men who did not have the equivalent of today’s High School diploma, and yet they were scholarly, well read, most well informed and excellent critical thinkers. I think we would do well to look at not only how these men thought, but also how they learned: as you said, by extensive reading for “extreme knowledge and intellect” plus that potent catalyst; passion.

Marc W. Stauffer says:
May 21, 2010 at 11:45 pm
Actually, they were very well educated, with most of the founding fathers having degrees, many in law. Many also held degrees in Ministry. The educational philosophy of the time included religion, morality and knowledge and was far more rigorous and demanding than today’s. Have you ever read The New England Primer? This was the introduction book to reading…a first grade equivalent book. Spelling was up to six syllables and there was much memory work. By fourth grade, complex math problems were calculated without the use of pen and paper (head math). Webster’s “Blue Back” speller was being used; creating the first “spelling bee’s” competitions. It was not uncommon for young people to enter the university system at the young age of 14. Fisher Ames (First Amendment creator) entered Harvard at 12, Charles Carroll of Carrolton (a Declaration signer) entered college at 12, Benjamin Rush (Declaration signer) graduated from Princeton at 14, Jonathan Trumbull (Con. Supreme Court Justice) passed the Yale entrance exam at 7 1/2 but was held back to enter with his peers at 13. James Iredell (Supreme Court Justice) was appointed to the North Carolina office of the Treasury as their Secretary at 17, the list goes on and on.
When you read about the lives of the Founders you suddenly realize what extraordinary men they were.

Dave says:
May 22, 2010 at 10:10 am
Thanks Marc for making me feel really stupid:) I remember reading a letter of Thomas Jefferson to a friend discussing a course of study for this friend’s son. Jefferson listed the required reading list and thought that with a modicum of dedication the son should finish the course of study in about three years. How did Jefferson define “a modicum of dedication?” Fourteen hours of reading a day! Contrast that with the results of a study done in 2003 of the reading activity of any kind done by 15- to 24-year-olds. This age group, our future leaders, read a whopping 8 minutes per day. Source: The Dumbest Generation by Mark Bauerlein.

Barb Zakszewski says:
May 24, 2010 at 6:41 pm
I have a book I bought a couple years ago, called “The constitutional Convention”, which is comprised of James Madison’s detailed notes of the proceedings, including many of the arguements for and against each article and phase of the Constitution. I started reading it, then put it aside, but guess what, I’ve picked it back up again!!

Carolyn Attaway says:
May 24, 2010 at 7:20 pm
I think it is up to the parents to instill the love of reading into their children, it is not a natural pasttime for most. When our children were born, Sunday became reading day, first to them, then later by themselves. The TV could not be turned on before 6pm, and only after 2 hours minimum of reading was done and discussed. Now our children are avid readers, and read everything. We still have table discussions on what we read, and debate our point of views. They have an immense vocabulary and can talk knowingly on most topics. And now, reading is done daily, their choice.

Susan Craig says:
May 24, 2010 at 7:58 pm
I saw an 8th grade graduation exam from back in the late 1800′s and if most ‘College’ graduates didn’t flunk it, I’ll eat my hat.

barb Zakszewski says:
May 24, 2010 at 8:19 pm
Shameful, isn’t it?? What isn’t being taught in our schools anymore. I remember having to memorize the Preamble to the Constitution in my 7th Grade History class. Now the kids are barely aware we even has a governing Constitution. Most kids think our Constitution is what the Supreme Court and Obama says it is..Sad indeed..That is why this site is SOO important!!

Mireille Cantrell says:
June 8, 2010 at 2:46 pm
Researching the trend toward homeschooling is growing year by year to become the fastest trend in education. The government is controlling what is taught in public schools and parents are concerned about the truths in our history that is being left out of our textbooks.
If America’s history is removed from the minds of its people, not only honor and pride will be lost, but the very freedoms for which our founding fathers fought and died for. Without liberty there remains only slavery and the will of the people will be removed by the government. We need to remember the past in truth because we are the result of this past.

Clarity Brown says:
June 8, 2010 at 4:33 pm
I think more people would do home-schooling if they weren’t so afraid of ‘how’ to. I know when my kids were just about ready to start school, I didn’t even consider it an option at the time. I was too afraid, and assumed there was no way I could teach my kids. Plus, I had no idea on where to get the information to know how and what to home-school them with.
Of course at the same time, I had no idea that the government was using schools in most places to push an agenda. If I had known that, I probably would have gone out of my way to find out this information.
They’re both in high school, now. I wouldn’t think of pulling them out, since they’ve been in the system too long. But I did make sure to keep them informed on everything happening, and fortunately for me, they both have an open mind on politics and what’s going on.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 18 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton & Madison)

Andrew Langer, Federalist Paper 18, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Andrew Langer, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 18

Guest Blogger: Andrew Langer, President of the Institute for Liberty

Friday, May 21st, 2010

Federalist #18

What sets the founding of the American republic apart from the founding of so many nations on Earth was the depth and breadth of knowledge, research, analysis and debate that went into it. This is made evident from Madison’s Federalist #18, written under his pseudonym “Publius”. In 18, Madison delves deeply into the experience of the ancient Greek states and the various federations, alliances, and confederations that they had historically formed. In an era without instant electronic access to libraries of information, the sheer amount of scholarship presented in these pieces is nothing short of astounding.

Federalist #18 charts the shortcomings that arose within these various confederacies, presenting them as analogs and object lessons for the then-current struggles the fledgling republic was experiencing. The message was simple: we must learn from these mistakes, and make every effort to correct where the learned Greeks were deficient. It is the essence of archival scholarship: those who do not know history are doomed to repeat it.

Two key lessons emerge. First and foremost, the issue of balancing minority interests against those of a powerful majority, and vice-versa. It was only though the careful historical scholarship of the founders that the delicate structures that we have today were created—and direct lines can be drawn from these lessons to the creation of two very different legislative branches, one stemming from direct democracy (The House), the 2^nd stemming (initially) from a more genteel (but, in my estimation far more responsive to the people) source of power (The Senate, which until the ratification of the 17^th Amendment drew its members from the nominations of state legislatures); the electoral college (which serves to balance the interests of rural and urban population centers); as well as the very system of dual sovereigns that underpins the system of federalism.

The second lesson arose out of the first—that whatever federal union would be created, would have to be strong. That even though federalism “secures to citizens the liberties that derive from the diffusion of sovereign power” (The Supreme Court in Coleman v. Thompson, 501 US 722, 759 (1991)), nevertheless there would still have to be a strong and unified central power, to ensure that the nation would not only grow and prosper, but be able to effectively defend itself. There is strength to be had in numbers, and this is the essence of E Pluribus Unum (Out of Many, One).

Call it happenstance, call it the coincidence of timing and talent, or call it (as I do) divine providence. The bottom line is that at the time when this nation needed learned minds and steady hands guiding it, those men were to be found leading it. Their grasp of the lessons of history (both the mistakes, and triumphs) are evident in Federalist #18.

Andrew Langer is the President of the Institute for Liberty

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 19 – Janine Turner

Federalist Paper 19, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 19, Federalist No. 19

Tuesday, May 25th, 2010

Howdy from Texas! I hope “y’all” had a great weekend. I hope you had a chance to start reading, ‘Miracle at Philadelphia.” It is such a great companion piece to what we are doing and did y’all watch the History Channel’s, “America: the Story of US?” It is fantastic!

I thank you for joining us today and I thank Professor Knipprath’s words of wisdom!

I hope you have a chance to check out my daily video today, (it’s on the website or the link to YouTube is on Facebook), and my daughter’s weekly video as National Youth Director, Week #2

Please spread the links via e-mail and Facebook. Today’s videos encompass quotes from Senator Patrick Moynihan and President Ronald Reagan and highlight the 1st Amendment and William J. Bennett’s book, “America: The Last Best Hope.”

As I read Federalist Paper No. 19 by Alexander Hamilton today I was intrigued with the following quote regarding sixteenth century Germany, “Military preparations must be proceeded 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.”

I find this phrase to be remarkably relevant today. We are experiencing so much “discussion” regarding threats to our country from foreign countries, so much “discussion” with foreign countries, so much dissension amongst our political parties and so much clashing pretensions from our Congress and Executive Branch that our vision is being obscured in regard to the fact that our enemy is in the field.

And Alexander Hamilton’s words about the lack of military alertness echoes forth a warning, too.

“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.”

Are we prepared?

God Bless,

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 19 – Cathy Gillespie

Federalist Paper 19, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 19, Federalist No. 19

Monday, May 24th, 2010

Professor Knipprath, thank you for an essay that goes way beyond Federalist 19, addressing the natural order of the universe! Your observations not only reflect what we have seen in history, but also what we are seeing in our country today.

Federalist 19 continues to reveal to us that the United States system of government as outlined in the Constitution is not just the result of our founding fathers’ vivid imaginations and creativity. The system of government they designed is based on an astute observation of history, an analysis of strengths and weaknesses of the governmental systems of many civilizations, and the improvements upon those systems our founders devised, taking into account their deep understanding of human nature, the people of the United States, and the resources of our great land.

Publius’ arguments for ratification are compelling because he doesn’t simply give an opinion, he backs up his position with example after example.

One of the last sentences of Federalist 19 caught my eye:

“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.”

Unlike many governmental systems in history, the system of government designed by our founders, within the structure of our Constitution, has allowed our country to withstand differences capable of “trying our strength.” Our system of government has not failed us, even in trying times. We survived the Civil War. We survived the Great Depression. We survived riots in the 1960’s. We survived World War I, World War II and terrorist attacks upon our country. We will survive the current immigration problems besieging many of our states. Through the course of history we have calibrated and recalibrated the course of our Nation through our elected representatives.

I believe that is what Andy was trying to say in a post this weekend:

“This country was founded on the ability to change direction in government by the vote. That happened two years ago because a majority of people felt change should happen. If that change went too far, then an opportunity to reset the course will occur in November.”

and what Janine says in her FoxNews Op-ed, Your Vote is Your Voice: http://www.foxnews.com/opinion/2010/04/30/janine-turner-supreme-court-justice-constitution-elections-elected/

Going back to Professor Knipprath’s essay, an informed, educated and engaged citizenry is the energy that keeps our Republic from decay. It is what keeps our system of government so carefully constructed by our founders, from failing us during the trying times.

The responsibility rests with We The People. When we understand our rights embodied in the United States Constitution as well as the principles upon which this country was founded, we can elect those who will use the Constitution as our guiding light as we forge the course of the future, keeping us strong during the times capable of “trying our strength.”

Good night and God Bless!

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 19 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton & Madison)

Federalist Paper 19, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 19, Joerg W. Knipprath

Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

Monday, May 24th, 2010

E Pluribus Unum. “Out of Many, One.” This aphorism is one of the mottos adopted by the Confederation Congress in 1782 for the Great Seal of the new United States. It not just describes the union of states that was put together through the efforts of the Second Continental Congress. That particular choice also recognizes the relative novelty of the political experiment Americans were undertaking, a novelty memorialized as well in a motto on the Seal’s reverse, Novus Ordo Seclorum, “A New Order for the Ages.”

Federalist No. 19 continues the examination of dangers from weak confederations, a topic that has, in one form or another, been at the core of most of Publius’s preceding efforts. As in the adjoining papers, the theme is the tendency of weak confederations towards internal turmoil, external weakness, and eventual collapse. Here, Madison focuses on the weaknesses of the Holy Roman Empire of the German Nation, an entity intended to re-create an old order for the ages.

The historical evolution of the Germanic realm that Madison describes is the opposite of E Pluribus Unum. “Out of one come many” better represents the unfolding of the usual order of things. That theme is common in creation explanations from religion, philosophy, and science. God created Adam, then Eve from Adam, who together multiplied. For Plato and his later interpreters, reality followed from the singularity of the Form of the Good. In physical science, everything developed from the singularity that is the source of the Big Bang. Under the theory of biological evolution, all life multiplied from some original single-celled organism. Out of one, many.

Likewise, the usual order of things is for systems, once established, to move from flourishing to decay, from order and unity to chaos and multiplicity, from the whole to the parts. This holds true for physical and biological systems, as well as systems of human organization. The body decays. Stars decay. Personal relationships decay. Political orders decay. Personal experience and a basic study of science and history lead us to these common sense conclusions.

Following initial Creation, subsequent creations may form new systems from pre-existing parts. People come together to form new families, communities, and states. At the level of states, these events are infrequent, and, as Madison points out in a later essay, usually the result of one charismatic man’s influence. But any such creation is immediately threatened by the tendencies towards decay and multiplicity.

The protection against decay and chaos is “energy.” To maintain our bodies, we use energy through food. Plants use the sun’s energy to stay alive. In families, it takes energy (physical and emotional) to maintain a well-functioning unit. So it is with political systems. The Germanic realm was created by Charlemagne, a very energetic statesman. But subsequent emperors were more ordinary, and the system itself failed to provide the structures that would allow the government to act with the requisite energy to maintain it. This need for “auxiliary measures,” that is, constitutional structures, to insulate the country from instability caused by variability in the qualities of the governing officials is raised in several essays.

Publius frequently raises the critical quality of energy in government in various writings. To underscore the force of his argument in Federalist 19, Madison’s recitation of the emperor’s formal powers suggests, not too subtly, those under the Articles. The princes, with their own claims to particular sovereignty, produced chaos within the system and intrigue from without. Madison’s warning about the deleterious effects of the decision to devolve power onto “circles” within the Empire was a pointed rebuke to supporters of the Articles who argued that common interests and customs within regions of the United States would produce amicability and desire for concord among neighboring states in ordinary matters, while the Confederation took care of external challenges. The Empire’s structure could not provide the conditions for energy in government when the emperor’s personal ordinariness could not surmount the system’s deficiencies. Neither could the Articles. The Constitution would.

Too little energy in government is a problem; so is too much. The sun’s energy is necessary for living systems. Yet too much energy kills as relentlessly as too little. Much of the debate over the Constitution was not about the need for energy in government, but about the amount. Some opponents of the Constitution thought that the Articles supplied enough. Others agreed with Publius that the Articles were defective, but worried that the Constitution went too far.

Though the particulars of Madison’s historical account might be open to question, his basic conclusions have merit. Still, the Empire lasted a thousand years. Indeed, Antifederalist writers lauded the relative stability and continuity of the systems that Madison derides. For well over three centuries (from the early tenth through the thirteenth), the Empire functioned effectively and energetically. It will take more than another century for the United States to reach that longevity. Meanwhile, we must ask whether the system that has emerged under the Constitution provides the right amount of energy to the central authority—or too much. Or did the Framers get the structure right, but have the people, through a lapse of republican virtue and political participation, permitted politicians and bureaucrats to stretch the structure beyond its original contours and to draw energy from individuals and other constituent parts to the central government?

As the mottos declare, the forming of the United States was a creative act to forge one out of many, first under the Articles and then, “to form a more perfect union,” under the Constitution. This was to be a new order for the ages, one that would seek to avoid the inevitable decay and dissolution through a novel constitutional accommodation. There is, too, a revealing third motto on the Great Seal, “Annuit Coeptis,” translated as “He [God] Approves Our Undertakings,” to complete the description of the project at hand. To avoid the fate of the polities that Madison describes in Federalist 19, we must remain vigilant to keep our constitutional, political, and social order true to the aspirations expressed in all three mottos and in the Constitution.

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. Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums. His website is www.tokenconservative.com

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 20 – Cathy Gillespie

Federalist Paper 20, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 09, Federalist No. 18, Federalist No. 20, Federalist No. 20

Wednesday, May 26th, 2010

“Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred.”

Thank you Mr. Duncan for your excellent observation that the founders relied on experience to ascertain truth, not “their unaided ability to reason out new solutions,” not “subtle thinking and cleverness,” and definitely not partisan politics.

Thanks to our enlightened, well educated founding fathers, the United States of America rests on the foundation of thousands of years of lessons learned from many civilizations. As Hamilton observed in Federalist No. 9, “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.”

Our culture does not value history as much as it once did. And there is an undisputable massive effort underway to re-write the history that we are teaching our children. If our leaders are ever to return to a framework for decision making that incorporates an objective look at history, we must all work, in our own way, to instill in our children and fellow citizens a renewed passion for learning about the past. We must work to preserve the integrity and accuracy of the history taught in our schools.

I am still thinking about Ron’s call to action last week in the comments section of Federalist No. 18, and how important it is that we all engage in culture creation.

As Janine so eloquently wrote in her op-ed, A Call to Arms for America’s Parents, we as parents must take responsibility for teaching or children history. We can start with some of the excellent books by Dr. William J. Bennett, including The American Patriot’s Almanac and America: The Last Best Hope Volume I and II. We can encourage our children to enter Constituting America’s We the People 9.17 Contest, asking them to think about and articulate how the U.S. Constitution is relevant today. And we can share the 90 in 90: History Holds the Key to the Future project with our families.

Sign up for our newsletter email list and forward the emails out to your friends. Forward the link to Juliette Turner’s Youth Videos like the one below where she reads from Dr. Bennett’s book and talks about the First Amendment.

Juliette Turner\’s Weekly National Youth Director Video

We can each have an impact in our circle of influence. And if we all work in our own small way to change the culture, to encourage an awakening to our country’s roots, foundation, and founding principles, to encourage a thirst for learning the lessons written for us in history, we will succeed.

Good night and God Bless!

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 20 – Janine Turner

Federalist Paper 20, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 20, Federalist No. 20

Tuesday, May 25th, 2010

The Ransom of Reason

Reason be and reason we
Away our distant shores
Wander not and wanton trot
Afraid of written mores

Did we not through seasons see
The meaning, yet for many
We forgot the how,
We riddled out the penny

“I know this and I know that
Believe me for I’ve the vision
Follow me and listen now
For I rewrite the mission

We is the forgotten us
It matter not for you
I seek your best and vest my truths
It is I who reap the view.”

Freedom this and Freedom that
Ring in empty vestibules
History renders ghosts forgotten
Lost the written tools

“I seize the rapture
Seek doleful and the bane
Meeker making spirit spree
I linger not in vain

Feed the weakness, starve the heart
Watch the soul regress
Rhyme and reason take their toll
Happy opportune the guess.”

By Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 20 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, from the New York Packet (Hamilton & Madison)

Federalist Paper 20, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William C. Duncan 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 17, Federalist No. 20, The Articles of Confederation, William C. Duncan

Guest Blogger: William C. Duncan, director of the Marriage Law Foundation

Tuesday, May 25th, 2010

Federalist 20 is one of a series of essays that discuss the governmental precedents of other nations as illustrations of some of the weaknesses of the Articles of Confederation. In it, James Madison discusses the Netherlands, painting a picture of a weak government held together by a strong magistrate and the pressures created by hostile surrounding nations. Madison underscores the fact that the government has overstepped its constitutional bounds on occasion because those bounds do not allow it to meet emergencies.

A lesson here is that a weak and ineffectual government is a threat to liberty just as an overly strong and active government would be. He explains that the experience of the Netherlands demonstrates: “A weak constitution must necessarily terminate in dissolution for want of proper powers, or the usurpation of powers requisite for the public safety.” The implication for the United States Constitution is that it must create a government capable of meeting true emergencies and dealing forcefully with threats from other nations. The failure to do so not only could result in dissolution, but ironically, could lead to too strong a government: “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.”

Madison attributes the weakness of the constitution of the Netherlands to “the calamities brought on mankind by their adverse opinions and selfish passions” and recommends that Americans “let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness.”

In addition to evoking gratitude, there is another important lesson in Federalist 20 for current political debates.

In the Pennsylvania Convention, John Dickinson had taught: “Experience must be our only guide. Reason may mislead us.” At the end of Federalist 20, Madison explains why he has spent time describing the precedent of other nations in words that echo Dickinson’s: “Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred.”

An obvious application of this point is to the ongoing debate over whether our government should continue to press for greater and greater social controls. It would seem obvious that the unequivocal disaster of socialist and communist governments ought to warn us away from that precipice.

More generally we can heed the Framers’ example of willingness to learn from experience rather than to trust only in their unaided ability to reason out new solutions. Subtle thinking and cleverness have their place but must be disciplined by a willingness to learn lessons from human experience. One of the greatest strengths of the U.S. Constitution is its dual application of (1) the principles of self-government learned in the colonial experience and (2) the lessons of history derived from careful study and reflection.

Returning to a theme from the discussion of Federalist 17, there is a temptation to apply not experience, but ideology, to problems we face as a nation. Doing so appeals to a hubristic temperament. Some will always be dissatisfied if political reality is not made to conform to prefabricated theories even when doing so requires compulsion and control. In fact, the ability to control society may be the attraction of such theories; at least to some of their adherents.

The Framers eschewed easy answers and paid the price in experience, deliberation and study to create a secure foundation for our national government. That foundation incorporates the lessons of experience. Our response to current challenges must do the same.

16 Responses to “May 25, 2010 – Federalist No. 20 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, from the New York Packet (Hamilton & Madison) – Guest Blogger: William C. Duncan, director of the Marriage Law Foundation”

Charles Babb says:

May 25, 2010 at 10:09 am

This morning I sent the following message to my children.

“Those who are not informed of what they possess will not recognize when it is taken from them. Nor, can they preserve it for their prodigy.

William Duncan has blogged an informative op ed in response to our reading of FEDERALIST No. 20 this morning and I invite you to take a few minutes and read it.

https://constitutingamerica.org/blog/?p=578

Love,
Dad”

Understanding what is needed won’t help much if I don’t take some positive step toward implementation. Eventually we can all begin to demand that those seeking elective office exhibit an of understanding of and a desire to support the truths we believe in.
Maggie says:

May 25, 2010 at 11:12 am

Madison and Hamilton state that “a weak constitution must necessarily terminate in dissolution for want of proper powers, or the usurpation of powers requisite for the public safety.”…..It is in the name of “safety” that the government has continued their unrelenting power grab. I’m sure we have all seen what an overbearing parent does to the will of a child. When does a parent let the child grow up and fend for himself? This goes for both “safety” concerns as well as being financially responsible. How brilliant these two men were when they said, “let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness.” Our “new” system works. Why are we not rejoicing to God that it has brought us thus far and doing all we can to protect it rather than looking back with fondness upon the many systems that have failed time after time?
Susan Craig says:

May 25, 2010 at 11:50 am

What crystal ball did they have? Or was it just a true understanding of history and its lessons?
This paragraph brought me up short!

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.

We have Michigan, California, Louisianna and Arizona. We have Islamic radicals, several countries that don’t like us very much (Venezuela, North Korea and Iran) not to mention those that wouldn’t mind seeing us taken down a peg.
Ron Meier says:

May 25, 2010 at 12:44 pm

Thanks for the Dickinson quotes, Mr. Duncan, especially “Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred.”

For the longest time, I had tried to show several otherwise very logical and rational friends, all with advanced degrees, including PhD, the folly of their thinking, by comparing reality to their ideology. For example, an atheist friend believes Radical Islam is not a problem and we should not be fighting a war in the Middle East. I pointed out that an atheist has the most to fear from Radical Islam because they would be forced to convert to Islam or be killed. Since an atheist does not believe in life after death, they would be most disappointed to be killed before their otherwise natural death; yet, if they are true to their atheism, they should not convert. Therefore, I would submit that Atheists should be the ones whom we might expect to be most adamant in pursuing the war on Radical Islam, to insure that they are never faced with that impossible choice.

After awhile it finally hit me that logical and rational reasoning, supported by experience and facts, was 100% ineffective in arguing with those whose ideology trumps all facts and experience. Now, generally, I ignore their comments and don’t waste time. It seems that my time is better spent discussing with those who are fence sitters and open to ideas rather than those who are confined to their ideological straitjackets.

I wonder what Mr. Duncan might think about the utility of arguing with these kind of ideologues and what advice he might have for us so we can be more effective? Certainly marriage counseling has many similar circumstances and I would assume similar roadblocks are encountered there.
Dave says:

May 25, 2010 at 1:42 pm

Mr. Duncan, well said. Thank you.

Charles for Father of the Year!

Maggie, I concur. With increasing frequency we are told of a crisis and the impending doom if we don’t grant Washington more power, control and more of our money.

And we haven’t been rejoicing to God for our good fortune for over one hundred years, because some pointy-headed, hubristic “intellectuals” thought man could do better. Man can create that utopia that God has so cruelly and stingily withheld. After two world wars one would think our days of longing for a man-made utopia contrary to “the laws of nature and of nature’s God” would be over.
Karen Sherer says:

May 25, 2010 at 2:21 pm

This study of the Federalist papers has really brought home to me the plain fact that a thorough knowledge of history is not “a useless course of study. I’ll never use it in my life. Why take it?” It is so very true that our current administration (and many others before it) DO rely on their pure ideological goals and either ignore or never learned the lessons of history.
Bache says:

May 25, 2010 at 2:32 pm

The wisdom obtained and applied by the Founders required diligence, dedication and knowledge. The personal principles each contributing writer and scholar to our Constitution and foundation of our country came with sacrifice. I believed that they recognized their own inadequacies and were willing to listen to experience and to the history. B. Franklin once said, ” The doors of wisdom are never shut.”
Susan Craig says:

May 25, 2010 at 2:33 pm

There is a book titled ‘The World Turned Upside Down’, that demonstrates that reason comes out of religion and that eventually all genres of thought that say religion is inimitable to reason and logic eventually hit a point which is unreasonable and illogical. The author is Melanie Phillips.
Carol Frenier says:

May 25, 2010 at 3:23 pm

I, too, continue to be interested in the impact of ideology on both 1) failing to see the importance of experience and 2) the desire of some to expand the power of central government. Can you recommend a good history of ideological development in American politics?
Laurie says:

May 25, 2010 at 3:58 pm

I was concerned that no one responded to Carol Frenier’s writing yesterday about what this ideology from Europe is that we keep referring to as the one that is a threat to the America that our founders gave us. I immediately think of a mandatory course in 11th grade, “Americanism vs Communism.” Bet that’s not mandatory anymore. Whether you want to call it Socialism or Communism, it is an ideology that gives the wealth to the political or ruling class and makes the rest of us basically equal. (See Russia, China, Cuba, Venezuela) A European book that was recently translated into English is “The Coming Insurrection” by the Invisible Committee, how to bring down governments, even the family. (Amazon.com has it) Also, study Saul Alinsky’s Rules for radicals and the Cloward and Piven strategy, you can Google those. They also preach how to overwhelm the welfare system in order to bring American capitalism to an end. The Drudge Report has a story today how “government provided benefits are at record high” and “paychecks from private businesses at record low.” (About 42%) Who is going to pay all these benefits? Unions want a 165 Billion Dollar bailout for their pensions. State worker unions want 100 Billion Dollar bailout. This is what the radicals want. Who is rioting in Greece? Labor Unions and Radicals. I’m afraid we are being set up by Overspenders in Washington, who want to collapse free enterprise and all our liberties. That is why this Federalist study, learning what Americanism is again is so terribly important.
Carolyn Attaway says:

May 25, 2010 at 4:08 pm

As Susan pointed out, the paragraph that begins ‘This unhappy people . . .’ could very well be written to some extent of America today. Reading headlines such as “Redistribution Victory: Private Pay Plummets, Govt Handouts Soar”, “ObamaCare Lawsuit Reveals National Grab to Regulate Individual Decisions”, and “Nonpartisan Proof: Cap-and-Trade Is an Economy-Killer”, brings home the point addressed in Paper 20 that ideology over experience always leads to failure. I believe that many nations have their eyes fixed on us, some praying for our strength, and others for our demise.

Which leads me to the most important statement that I have read so far in the Federalist Papers; with added words “Experience is the oracle, the divine revelation of truth; and where its responses are unequivocal, absolute, they ought to be conclusive, decisive and regarded with reverence, sacred.

As Mr. Duncan points out, “Subtle thinking and cleverness have their place but must be disciplined by a willingness to learn lessons from human experience. One of the greatest strengths of the U.S. Constitution is its dual application of (1) the principles of self-government learned in the colonial experience and (2) the lessons of history derived from careful study and reflection.”

Of this great strength in our Constitution, can we make the argument that our Congress is not paying much heed to the second application, and that many of America’s citizens themselves have forgotten the valuable lessons of history? I am always taken aback when I mention a relatively known country such as Wales, and the large number of people who do not even know that Wales is a country, much less where it is located.

So how can one study the history of a country, if they do not even know that that country exists? One of my favorite videos on AFV is when the father of a little 2 year old girl asks her to point to various states and cities on the map, and when she is correct in her answer, she does the “Smarty Pants Dance” (It still makes me giggle) Anyway, maybe we should take this lesson and apply it to students of all ages, reinforcing the idea that knowledge of history makes one very wise.
Kay says:

May 25, 2010 at 10:50 pm

The premises and arguments of The Federalist Papers are seeping into my being. Two weeks ago I wrote a two page letter to my congressman (remember the NY 23rd district race) with concerns, and ended it with: “Our founders were wiser than the whole Congress put together today, having foresight because they had hindsight on what works and does not work for a nation to prosper. They did not live in the moment because they desired that the Constitution be a lasting document, not like the legislation Congress is passing that will destroy us as a people.” Because of the essayists and commentators on this project, my thinking is being refined and focused on the whys behind our wonderful Constitution. May we all have opportunities to pass onto others what we are learning.
Constituting America says:

May 25, 2010 at 11:22 pm

The Ransom of Reason

Reason be and reason we
Away our distant shores
Wander not and wanton trot
Afraid of written mores

Did we not through seasons see
The meaning, yet for many
We forgot the how,
We riddled out the penny

“I know this and I know that
Believe me for I’ve the vision
Follow me and listen now
For I rewrite the mission

We is the forgotten us
It matter not for you
I seek your best and vest my truths
It is I who reap the view.”

Freedom this and Freedom that
Ring in empty vestibules
History renders ghosts forgotten
Lost the written tools

“I seize the rapture
Seek doleful and the bane
Meeker making spirit spree
I linger not in vain

Feed the weakness, starve the heart
Watch the soul regress
Rhyme and reason take their toll
Happy opportune the guess.”

By Janine Turner
May 25, 2010
Laurie says:

May 25, 2010 at 11:50 pm

The God that the founders turned to in 1776, is the same One today. Without Him, we will not succeed in our desire to re-found our nation on the principals of the Declaration of Independence and the Constitution. Make no mistake. Without Him, we will be overwhelmed by the agenda from others. Our founders didn’t just have incredible knowledge of history, they believed in God, and His special purpose for America. That was their strength. We must have the same strength today. Those who believe in America, must believe in the God of our Founders, Who gave the incredible power and foresight and knowledge to help them to create our exceptional-ism, never before in the history of the world, a country of freedom and liberty and justice for all. Truly, a miracle.
Maggie says:

May 26, 2010 at 9:03 am

Janine……that’s absolutely beautiful!
Roger Jett says:

May 26, 2010 at 9:31 am

Laurie, I agree. Even the “Deist” of our day can see that we live in “a time that try men’s souls”, but it will require that “we the people” once again awaken to the faith of our fathers. A faith that not only acknowledged Him the “Creator” as He was ….., but that He is and that He will always be the “Sustainer” and “Giver” of all good things. You said in your post that “they believed in God, and His special purpose for America.” There are those who dispute that and have long been laboring in the margins of our society to knit a fabricated false rewrite of history. Unfortunately, they are no longer operating in the margins. They are positioned in high places and with each day they seek to entrench. As you say, “Without Him, we will be overcome by the agenda of others”. We can reason and trust that He that is the “First Cause” is more than able and can effect the restoration and sustainment of all that we desire, “a country free and liberty and justice for all”.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 21 – Janine Turner

Federalist Paper 21, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 20, Federalist No. 21, Federalist No. 21

Thursday, May 27th, 2010

Well, small business profits are on the decline and government provided benefits are on the rise. Carolyn, I read your blog and I also heard about these frightening statistics today. Socialism is rearing its ugly head. Next will be the general demise of spirit and motivation in our country. This exact scenario was predicted by Samuel Adams in his warning over two hundred years ago, “The pooling of property and redistributing of wealth are both despotic and unconstitutional.”

As duly noted in last night’s reading of Federalist No. 20. We must learn from the experience of history. It makes no sense, and has been proven by history, that if a country becomes a nanny state and feeds the people’s every whim, punishes the hard working enterprising people, snuffs the spirit of business by taking over their free enterprise then the country and her citizens become mired down with a lack of motivation.

If motivation is at a minimum, productivity ceases to prevail and if productivity ceases to prevail then there is no money for the nanny. If the nanny does not provide then the people rebel. When the people rebel then there is a need for a strong force to control. Enter Tyranny. Good-bye Democracy. Good-bye Republic.

Carpe Diem. We must seize the day and reverse course while we can. This begins with knowledge and fortification. Wisdom whispers in the words of Publius.
The answers are in the United States Constitution.
Spread the word.

God Bless,

Janine Turner
P.S. I thank you Horace Cooper for joining us today and for your brilliant insights

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 21 – Cathy Gillespie

Federalist Paper 21, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 21, Federalist No. 21

Thursday, May 27th, 2010

Yesterday, May 25, 2010, marked the 223 anniversary of the convening of the Constitutional Convention in Philadelphia. The National Constitution Center is sponsoring an innovative Twitter program which Constituting America is promoting: www.twitter.com/secretdelegate .

The premise is that a rogue delegate is secretly “tweeting” from the Constitutional Convention and giving us “the inside scoop.” It is fun! If you are on Twtter, check it out! If you aren’t on Twitter, consider signing up! It is vital that we utilize “new media,” to spread the word about the Constitution and the founding principles of our country.

Thank you to all of you who participate in this blog, follow Constituting America on Facebook (www.facebook.com/constitutingamerica), and Twitter (www.twitter.com/constituteUS) , and forward emails out to your friends! A big thank you, also, to Horace Cooper for sharing your insights on Federalist 21 with us!

In Federalist 21, Publius begins an itemization of the weaknesses of the Articles of Confederation in order to build a case for the proposed Constitution. The Articles of Confederation were clearly not taking the country in the direction the founding fathers hoped it would go. Imagine what shape the country must have been in, in 1787, for our founders to have undertaken the monumental task of travelling to Philadelphia, and spending over three months in the oppressive summer heat crafting the Constitution.

From Hamilton’s writings, it seems the national government did not have enough funds to operate, the states were not being adequately protected from domestic uprisings such as Shays Rebellion in Massachusetts, and the founders foresaw long term problems in the unequal way taxes were being collected from the states through quotas.

How are these Federalist Papers relevant today? The United States of 2010 is again in a period of challenging times. A shaky economy, threats from our borders, and protesters from groups such as SEIU that are increasingly bold and unruly. Most recently to the point that Nina Easton, a member of the media who would normally support the rights of protesters, has openly condemned a group of over 500 who showed up next door to her home, on the lawn of her neighbor, Greg Baer.

All the while, the national government seems to be ever growing and reaching, employing the “Star Trek” principle: Boldly Going Where No United States Government Has Gone Before – running our auto companies, our health care system, and even trying to dictate what types of food we eat!

For those who are unhappy with the course of our country, there is solace in Alexander Hamilton’s words:

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.

Thanks to our Constitution, and our republican form of government, there is a structure in place to change the course of the country, and get back onto the path envisioned by our founders, the path of individual liberty, limited government, and free enterprise.

Tough times in 1787 sparked an amazing document that has guided our country for over 200 years, now the oldest federal constitution in existence.

What positive outcome will the tough times of 2010 produce? I am praying it will be a rekindled passion for the United States Constitution, and the founding principles of our country – the principles that have allowed us to be, in Janine Turner’s words, “America the beautiful, America the hope.”

Good night and God Bless!

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 21 – Other Defects of the Present Confederation, For the Independent Journal (Hamilton)

Federalist Paper 21, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 13. Guest Constitutional Scholar Essayists, Federalist No. 21, Horace Cooper

Guest Blogger: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation

Wednesday, May 26th, 2010

The Federalist #21: In Defense of Politics

Hamilton opens Federalist #21 with a continuation of a theme: it will be easier to understand the need to adopt the new Constitution if the defects of the old Articles of Confederation are better understood. He embarks on an effort to outline what he calls the “enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves.”

He starts with the fact that under the Articles of Confederation, the federal government had no power to enforce its rulings. He sees this as an almost fatal flaw. He complains that the “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.” In addition to the hardships that beset any government incapable of enforcing its on rules and laws, Hamilton explains that such a posture is certainly unique among nations. He argues that there are no nations — kingdoms or any other kinds of governments which operate without the fundamental ability to carry out its interests.

A second flaw in the present system is that in almost all respects the states are left to fend for themselves. In one crucial way, Hamilton points out this isn’t even in the interest of states. What happens in the event there is a local insurrection? There is no ability for the governor of one state to enlist the citizens of another state to step in and offer assistance. Thus, there is the potential that states would have to devote significant resources solely for domestic armies that would lay in wait for an uprising meanwhile draining the treasury. Collectively one might imagine this duplicative waste across the several states equaling more than the amount that a federal government would use to handle the same concerns. Additionally, the mere fact that the federal government could respond to an internal insurrection could be sufficient to prevent one from forming altogether. Hamilton further points out that the Constitution’s guarantee that all its citizens would have a “republican” form of government means that in the event the leaders of a state attempt to declare a dictatorship or otherwise suspend democratic control the Federal government could intervene to return liberty back to the hands of the people.

Hamilton turns next to the taxation system set up under the Articles of Confederation. The “quotas” system that he derides essentially assessed the states themselves instead of having direct taxing authority. Hamilton explains that a system based on state assessments would fundamentally fail to meet the needs of the American government. It would be insufficient and in his view significantly inequitable in that it simply presumed that all states were equal in most respects financially. Hamilton explains 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.” Furthermore he explains, “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.” While making his argument for a federal consumption tax, Hamilton demonstrates a degree of clarity about the consequences of tax rates being too high that many modern leaders would do well to recall. If you tax too high, you get less. Hamilton explains, “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.

With the three defects that Hamilton identifies by implication the answers provided in the U.S. Constitution are clearer and more readily understood. The Federal government in the Constitution has the power to enforce its rules, defend each of the states individually and collectively and finally assess taxes directly rather than through the states. Prior to this change the Federal government was indebted, powerless and in many ways so weak, it threatened the liberty of all Americans because it was unable to defend them against most threats.

Horace Cooper is the Director of the Institute for Liberty’s Center for Law and Regulation

12 Responses to “May 26, 2010 – Federalist No. 21 – Other Defects of the Present Confederation, For the Independent Journal (Hamilton) – Guest Blogger: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation”

Ron Meier says:

May 26, 2010 at 7:50 am

Cathy has called us to encourage children to participate in this project and contest. I’ve forwarded the link to a principal of a Christian school, but it then occurred to me that schools will be closed for the next several months. So, I sent a link to the woman at my church who runs the Children’s ministry; Sunday schools and Vacation Bible Schools will continue to operate all summer, so they are a good source to get children involved with Constituting America. If we all contact our church children’s ministers, we might get more kids involved.
Maggie says:

May 26, 2010 at 9:39 am

That’s a fantastic idea Ron. I’ll be sending a link to my church’s youth leaders.
Charles Babb says:

May 26, 2010 at 9:41 am

Good move Ron; It is frustrating, to me, to see how easy it is to acquire this information, and to realise that many of our leaders don’t seem to possess it. We have a mid-term election this year and I decided to send the following email to a candidate for Congress from my District.

“I would sure feel more comfortable casting my vote for you, if I saw that you were participating in this program.

http://www.constitutingamerica.org/

It appears that too many of our leaders have not made a commitment to understanding our Constitution and why it developed as it did.

Knowing that those who seek leadership roles are truly committed to preserving that which has made US the greatest Nation in existence, is important to all voters.

You cannot preserve it, if you don’t understand and live it.

Seeing your name in our daily blogs would mean to me that you truly do understand and that you are truly committed to preserving our way of life.”
Susan Craig says:

May 26, 2010 at 11:40 am

With the first flaw identified in #21 has merit I don’t think the power of enforcing unfunded mandates was something the founders envisioned. Unfunded mandates in many ways contribute in major ways to not only State budget woes but to the health care costs problem.
With the second expounded, we see an abrogation of that in the current illegal alien situation. The invasion of our country by people who start off their residency demonstrating a disrespect for our laws is compounded by the movement for boycotts between neighboring states.
Problem 3 is a well duh! I find the counter-intuitive fact that the more you tax the less you get one of the things that I can not understand how the people in politics do not see it.
Chuck Plano, Tx says:

May 26, 2010 at 12:55 pm

Susan people in politics do see it and they ignore it. It is all about the next election cycle and what will get them reelected. When politics became a very profitable profession with life time benifits and very little service is when “We” the people started loosing control of our government and as the number of citizens grew that do not have an investment (income tax) in our government they demand more and more and politicins are all the more ready to give it to them to insure their election to office.
Susan Craig says:

May 26, 2010 at 1:47 pm

I suppose I sort of knew that. But being the pie-eyed optimist I hoped that it was not across the board.
Roger Jett says:

May 26, 2010 at 4:20 pm

With much insight and skill, Horace Cooper has expounded upon the increased focus that Hamilton has placed toward the “defects” and shortcomings of that form of government prescribed under the old Articles of Confederation. In my post, I ask to be allowed to take a bit of a light-hearted yet I hope pertinent look at that process that we as a nation went through as we debated, charted and then negoitiated our course by which we arrived at a newly designed and better government.

I begin by confession to the fact (as my family will verify), that I have this tendancy to reduce and relate many things (for which I devote much time), to either an episode of the old Andy Griffith Show, or to a scene from the movie “O Brother Where Art Thou”. Well today’s epiphany was inspired by the afore mentioned movie and it helped me grasp a better understanding of how things were for our young country during that time that we were linked together under the “Articles of Confederation”. If you are familiar with this movie, let me direct you to a scene that appeared early on. The main characters, Everett, Pete and Delmar while in prison have formed a “confederacy” with the common goal of achieving freedom. While they are able to escape the chain gang, they are still hindered by the fact that they are in shackles and chains that link them together. As they make their awkward and laborious run for freedom, they must work as a unit because they are literally bound to each other. Necessarily, a joint and coordinated effort must be made in order to put distance between them and the pursuers hounding them. Disaster strikes as they attempt to hop a freight train and it is quickly revealed that there are serious “defects” in their newly formed confederacy. The outside viewer quickly realizes even if Everett, Pete and Delbert fail to fully do so, that this small confederacy, as it is currently formed, is in great danger of not surviving. As they made their run to hop the train, Everrett manages to make it inside the freight car, but fails to remember that his success as an individual is linked to the rest of the confederacy. Delmar only makes it halfway in and Pete after running too great of a distance, falls down and of course Delmar and then Everrett are pulled from the train. After this debacle they individually arrive at the conclusion that a convention is needed in order to review and reconsider the the current form of government for this “outfit” and debate what changes are needed.

The individual wills are causing division and friction within the group. Also, it has become clear that there has been a failure to determine and define definite lines of authority by which effective leadership can be achieved and maintained. Pete is especially unhappy with Everett’s presumption of a leadership position. Everett makes the case that he, because of his superior intellect should lead. SORRY! I’ve apparently exceeded an allotted amount of space. Hope to finish in another pos
Roger Jett says:

May 26, 2010 at 5:27 pm

This is a continuation of my earlier post at 4:20pm. Everett makes the case that he, because of his superior intellect should lead. However, the viewer has already witnessed Everett’s failure to help Delmar and Pete succeed in getting into the freight car ….. a failure that caused the whole confederation to fall off the train in defeat. Self proclamations and self appointments do not make leaders “bona fide”. Later scenes give us further reason to question the ability of Everett to act in the best interest of the others. Everett is determined at all cost to hold his position as “pater-familias”, but finds himself in grave danger of losing his headship over his seven young daughters. If a man fails his wife and daughters, can he then be trusted to be the “bona fide” leader of our little confederacy? Oh constant sorrows!
Pete displays that he is independent minded and strongly stands up to argue and vie for the leadership role. He has common sense, is committed to duty and loyal (especially to kinfolk). Pete will not be railroaded (though he might fall down while catching a train), but does he have vision and the overall capacity to lead?
Delmar is the valley of humility in between the two mountains of self-interest. Instead of siding with one faction over another he simply takes the diplomatic position of ” I’m with you fellars”. We chuckle, but that individual quality was greatly needed during the time of transition from the old way to the new. Delmar best represents the many who are first and formost self-governed by the “golden rule” and they serve to be cohesive for the group at large. They hold us together during times of heated debate so that the debate can be completed and hopefully the best interest served. Thankfully, our Founders were successful in their great endeaver to bring about a strong constitutional republic. A government that has enabled us to protect our persons, our property and our freedoms. Thankfully, long after they lost their chains and shackles, Everett, Pete and Delmar also went on to form a more perfect union ….the “Soggy Bottom Boys”.
Carolyn Attaway says:

May 26, 2010 at 6:29 pm

Thank you Mr. Cooper for your insightful analysis of Paper 21.

The 3 flaws that Hamilton describes are indeed matters of grave importance for the reasons he mentions, as well as National Security beyond invasion by a foreign power.

In the second flaw Hamilton points out that States are left to defend themselves, and the trouble the States incur may be too large for them to handle alone.

Today, many States have to fend for themselves because the Federal Government won’t help them whether by choice or oversight, many speculate on the reasons, but the fact remains that many States are without federal assistance. Border States have to deal with illegal immigration relying on their own resources to guard against illegal entry and activity. Gulf States have to direct their own cleanup efforts from the BP oil spill because of the absence of Federal help; and then on the other hand the Federal Government criticizes them for taking action.

I believe we as a country are at the point where Hamilton states “The natural cure for an ill-administration, in a popular or representative constitution, is a change of men.”

The third flaw is very present in our Congress today. Hamilton states “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.” My daughter and I were discussing our economy today, and how that states compared to each other.

On average, the northern states are heavy laden with unions and high taxes, whereas the western states are quickly becoming bankrupt because of their liberal policies. Yesterday the headlines disclosed the following: Paychecks from private business shrank to their smallest share of personal income in U.S. history during the first quarter of this year, a USA TODAY analysis of government data finds. At the same time, government-provided benefits — from Social Security, unemployment insurance, food stamps and other programs — rose to a record high during the first three months of 2010.

According to news reports, most states in the Sunbelt have the lowest taxes and largest amount of private businesses. Even though all states are struggling to balance their budgets, and are having to make major cuts in state programs, the Sunbelt states are generally faring better than their sister states. This example tends to support Hamilton’s third flaw and should give high tax states and the Federal Government pause.
Susan Craig says:

May 26, 2010 at 7:28 pm

2nd attempt. Chuck, I sort of knew that but being a wild-eyed optimist did not wish to believe it was deliberate.
Constituting America says:

May 27, 2010 at 12:32 am

Yesterday, May 25, 2010, marked the 223 anniversary of the convening of the Constitutional Convention in Philadelphia. The National Constitution Center is sponsoring an innovative Twitter program which Constituting America is promoting: http://www.twitter.com/secretdelegate .

The premise is that a rogue delegate is secretly “tweeting” from the Constitutional Convention and giving us “the inside scoop.” It is fun! If you are on Twtter, check it out! If you aren’t on Twitter, consider signing up! It is vital that we utilize “new media,” to spread the word about the Constitution and the founding principles of our country.

Thank you to all of you who participate in this blog, follow Constituting America on Facebook (www.facebook.com/constitutingamerica), and Twitter (www.twitter.com/constituteUS) , and forward emails out to your friends! A big thank you, also, to Horace Cooper for sharing your insights on Federalist 21 with us!

In Federalist 21, Publius begins an itemization of the weaknesses of the Articles of Confederation in order to build a case for the proposed Constitution. The Articles of Confederation were clearly not taking the country in the direction the founding fathers hoped it would go. Imagine what shape the country must have been in, in 1787, for our founders to have undertaken the monumental task of travelling to Philadelphia, and spending over three months in the oppressive summer heat crafting the Constitution.

From Hamilton’s writings, it seems the national government did not have enough funds to operate, the states were not being adequately protected from domestic uprisings such as Shays Rebellion in Massachusetts, and the founders foresaw long term problems in the unequal way taxes were being collected from the states through quotas.

How are these Federalist Papers relevant today? The United States of 2010 is again in a period of challenging times. A shaky economy, threats from our borders, and protesters from groups such as SEIU that are increasingly bold and unruly. Most recently to the point that Nina Easton, a member of the media who would normally support the rights of protesters, has openly condemned a group of over 500 who showed up next door to her home, on the lawn of her neighbor, Greg Baer.

All the while, the national government seems to be ever growing and reaching, employing the “Star Trek” principle: Boldly Going Where No United States Government Has Gone Before – running our auto companies, our health care system, and even trying to dictate what types of food we eat!

For those who are unhappy with the course of our country, there is solace in Alexander Hamilton’s words:

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.

Thanks to our Constitution, and our republican form of government, there is a structure in place to change the course of the country, and get back onto the path envisioned by our founders, the path of individual liberty, limited government, and free enterprise.

Tough times in 1787 sparked an amazing document that has guided our country for over 200 years, now the oldest federal constitution in existence.

What positive outcome will the tough times of 2010 produce? I am praying it will be a rekindled passion for the United States Constitution, and the founding principles of our country – the principles that have allowed us to be, in Janine Turner’s words, “America the beautiful, America the hope.”

Good night and God Bless!

Cathy Gillespie
Debbie Bridges says:

June 22, 2010 at 5:23 pm

I was really surprised when I read the argument for the Consumption Tax. We have this same idea being raised and fought for today with the Fair Tax. The IRS has become way to powerful and invasive and the tax system in our country is broken just as it was back when we were under the Articles of Confederacy. I have been learning so much from these posts and will continue to read and eventually catch up with everyone.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 22 – Janine Turner

Federalist Paper 22, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 22, Federalist No. 22

Friday, May 28th, 2010

Why write many paragraphs when a few lines will do, three lines to be exact, from Alexander Hamilton’s Federalist No. 22?

1. Though the genius of the people of this country..

2. Its opposition contradicts that fundamental maxim of Republican government, which requires that the sense of the majority shall prevail.

3. The fabric of American empire out to rest on the solid basis of THE CONSENT OF THE PEOPLE.

Are these words being honored in our American government today?

God Bless,

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 22 – Cathy Gillespie

Federalist Paper 22, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 22, Federalist No. 22

Thursday, May 27th, 2010

Thank you Dr. Morrissey for walking us through Federalist No. 22! Publius certainly covers a lot of ground in this Federalist Paper! If only our current elected officials would take the time to methodically explain major proposed legislation in this manner. Our “sound bite” culture and collective short attention span does not lend itself to deeply and thoroughly understanding the many issues facing us.

The weaknesses of the Articles of Confederation were many: lack of federal regulation of commerce, including foreign commerce and interstate commerce; the weakness of the state quota system for raising armies; problems of equal suffrage among the states; the weaknesses of the 2/3 majority requirement for important resolutions ; lack of “one Supreme Tribunal,” and overall so many problems with the Articles of Confederation that they were not deemed fixable by amendment. Publius goes on to point out the weakness of a Congress with only one legislative body, and the final and most important flaw: The people never ratified the Articles of Confederation. It is with this final point that my favorite quote from Federalist 22 appears:

“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.”

One of the things I have enjoyed most about reading The Federalist are the quotes like the one above, that leap off the page, and speak to us so clearly, 223 years later. They encapsulate principles that our country has drifted from, and remind us of the intent of the founders. When these principles are followed, our country flourishes. When we drift from them, we stagnate.

If only our founding fathers could come back today, and write a series of Federalist Papers where they analyze our current governmental structure in the same manner they analyze the Articles of Confederation, and methodically itemize all the places our country has deviated from their original founding principles. I have a feeling they would have a hard time confining their essays to 85!

Good night and God Bless!

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 22 – The Same Subject Continued: Other Defects of the Present Confederation, From the New York Packet (Hamilton)

Federalist Paper 22, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William Morrisey, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 15, Federalist No. 21, Federalist No. 22, William Morrisey PhD

Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Thursday, May 27th, 2010

The Federalist #22: In Defense of Politics

Publius here concludes his critique of the old constitution, the Articles of Confederation, a critique he began with Federalist #15. To understand this critique, we need to step back and consider the problem the Founders intended to solve: Can modern states practice politics? This seems an odd question. There seems to be no shortage of politics in the modern world. And why should politics—messy, compromising, frustrating, roiling politics—be something anyone would want to encourage, anyway?

Undeniably, politics has aroused the interest of the greatest minds: Plato titles his most famous dialogue Politeia, which means “regime”; Aristotle devotes an entire book to politics. In that book, Aristotle points to the family as the embryo of politics; in the household we can see the DNA of political life. Aristotle identifies three kinds of rule within every family: the rule of master over slave, whereby the ruler commands the ruled for the benefit of the ruler; the rule of parent over child, whereby the ruler commands the ruled for the benefit of the ruled; and the reciprocal rule of husband and wife, in its proper form a consensual rule animated by discussion and compromise—“ruling and being ruled,” as Aristotle puts it. An overbearing spouse acts like a master or parent toward one who does not by nature deserve to be treated like a slave or a child. Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model. In human societies only tyrants attempt masterly rule, only kings attempt to rule as if they were fathers of their countrymen.

The small, ancient polis and the larger feudal communities lent themselves readily to political rule. In a polis, where everyone knows everyone else, unquestioned rule of one over many seldom lasts. Under feudalism, the presence of numerous titled aristocrats, each with his own independent source of revenue and of military recruits, will not submit to tyranny forever, as King John of England should have learned at Runnymede, but didn’t.

By contrast, the political engine of the modern world, the state, threatens to put an end to political rule, to make all rulers rule in masterly/tyrannical or parental/ authoritarian modes. Large and centralized, the state can mortally compromise all independent bases of authority in its domain, repressing any need to discuss or compromise. At the same time, the very power the modern state marshals requires all neighboring societies to institute states of their own, upon pain of conquest.

The Founders thus attempted something that seemed impossible: To constitute a modern state that is sufficiently powerful to defend itself against other states but nonetheless political, not masterly or tyrannical. They solved the problem in principle by adopting and refining the idea of federalism. A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.

Why should we want it to? Because, as Aristotle argues, human beings differ from all the other animals in their capacity to speak and reason: If I say `Jump’ and allow you to say no more than, `How high?’ you may be speaking but you are not reasoning. Your character as a human being suffers. In political life, you can talk back. To be sure, at some point, you will run up against the `being ruled’ side of the Aristotelian equation. But so will everyone else.

The Articles constitution tried to protect political life by keeping most of the American states small enough to feature political life but strong enough to be sovereign—even as, in federation, they multiplied their strength to fend off enemy states. As Publius has argued in this series, however, the Articles constitution contradicted itself. The general or federal government could only raise revenues and soldiers with the consent of the member states. But there can be no “sovereignty over sovereigns.” Disunion threatened. Foreigners sneered and circled for the kill.

Publius lists seven additional defects of the Articles, all of them flowing from this overarching defect. As seen in #21, the first three of these defects are the lack of sanctions for violations of federal law; the lack of any guarantee of mutual aid in case of usurpation within any one state; and the lack of any common standard for determining the revenues each state owes to the general government that protects them.

Publius now turns to the remaining defects, both material and moral. Materially, the structure of government under the Articles constitution impedes national commerce by allowing member states to enact protective tariffs against one another. Morally, this inclines each state to treat others as “foreigners and aliens”—the way Europeans do. Materially, the federal government also wields inadequate military strength, as states remote from the battlefields have little incentive to contribute men or material; morally, this leads to “inequality and injustice among the members.”

Speaking of inequality and injustice, equal representation of each state in the unicameral Articles Congress “contradicts that fundamental maxim of republican government, which requires that the sense of the majority should prevail.” Why will—why should—New York and Virginia long tolerate a government that allows tiny Delaware or Rhode Island to hamstring it? Especially if the legislatures of the small states were to fall under the influence of foreign powers, and not republican ones.

To these economic, military, and political defects of the existing government, Publius adds another problem with the legal system. Not only does it have no power to enforce Congressional laws, it lacks a federal judiciary to oversee “a uniform rule of civil justice.” Without a federal judiciary, encroachment of federal authority by the states can find no defenders beyond the military; force, not law, will rule.

The Articles government has only one ruling institution, the Congress. The absence of other independent but complementary branches of government might have undermined genuinely political life in the United States, except that the framers of the Articles made the Congress more or less impotent vis-à-vis the member states. But this caused another problem. Unqualifiedly sovereign member states will incline to violate the fundamental law of contract, of government by consent: That no party to any contract may excuse himself from the terms of the contract without the consent of the other parties.

Therefore, the new constitution will require ratification not by the governments of the states but by the people of each state, and moreover by the people of states now to be united by the only true rulers of a republican regime. This new governing contract, “flow[ing] from that pure, original source of all legitimate authority,” will supply the national means needed to secure the national ends listed in the Preamble. Therefore, also, the new and more powerful wielder of those means, the federal government, can no longer rest in the hands of one ruling institution, but in the tripartite structure of legislative, executive, and judicial branches. This newly-devised institutional structure for American self-government can preserve politics, reciprocal ruling-and-being-ruled, at the highest level of American government without necessarily exposing Americans to conquest by imperial monarchies.

Will Morrisey is William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.

14 Responses to “May 27, 2010 – Federalist No. 22 – The Same Subject Continued: Other Defects of the Present Confederation, From the New York Packet (Hamilton) – Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”

Shannon Castleman says:

May 27, 2010 at 6:26 am

There are some people who condemn people like Hamilton for being the “first types of big government politicians, because of the desire for a National Bank, and stronger central government.

In my opinion, these groups of Federalist essays proves those naysayers wrong.

The “Federalists” didn’t want BIGGER goverment, they wanted a WORKABLE governmet. We need to put ourselves in Hamilton’s shoes, where we see a government not even strong enough to raise revenues, or strong enough t raise a military. Of course we needed a “bigger” government a that time, or we woul have gone the way of Europe.

Hamilton would in no way support “bigger” government if he awakened in 2010 America.
Susan Craig says:

May 27, 2010 at 8:42 am

Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model. While Publius makes a great argument against the Articles of Confederation, I seriously doubt that he wanted the political pendulum to have swung so far that the power to exercise it in a paternalistic manner [such as today]. Professor Morrissey is profound when he points out that A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.
American states small enough to feature political life but strong enough to be sovereign—even as, in federation, they multiplied their strength to fend off enemy states.
Charles Babb says:

May 27, 2010 at 9:43 am

Hamilton seems to be saying that, if the proposed new constitution is not adopted and if the existing foundation of government (Articles of Confederation) can survive the aggression of greedy, self serving men, it will evolve, bit-by-bit, into a structure of government not desirous by anyone.

Is this not exactly what has happened to our Constitution? Have not (career) politician’s ignored the obvious wishes of the electorate, hiding behind (and serving instead) the power of political parties. No longer do they just overstep Constitutional authority, they thumb their noses at us and stomp all over it.

If this were not so, why would an elected official have to hide what goes on in her office from view of the “public” she (or he) swore an oath to serve.

Few of them today, would acknowledge that “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.”
Constituting America says:

May 27, 2010 at 10:09 am

Sorry guys, I thought I posted this last night.. I’ll check in later on Federalist Paper No. 22

Well, small business profits are on the decline and government provided benefits are on the rise. Carolyn, I read your blog and I also heard about these frightening statistics today. Socialism is rearing its ugly head. Next will be the general demise of spirit and motivation in our country. This exact scenario was predicted by Samuel Adams in his warning over two hundred years ago, “The pooling of property and redistributing of wealth are both despotic and unconstitutional.”

As duly noted in last night’s reading of Federalist No. 20. We must learn from the experience of history. It makes no sense, and has been proven by history, that if a country becomes a nanny state and feeds the people’s every whim, punishes the hard working enterprising people, snuffs the spirit of business by taking over their free enterprise then the country and her citizens become mired down with a lack of motivation.

If motivation is at a minimum, productivity ceases to prevail and if productivity ceases to prevail then there is no money for the nanny. If the nanny does not provide then the people rebel. When the people rebel then there is a need for a strong force to control. Enter Tyranny. Good-bye Democracy. Good-bye Republic.

Carpe Diem. We must seize the day and reverse course while we can. This begins with knowledge and fortification. Wisdom whispers in the words of Publius.
The answers are in the United States Constitution.
Spread the word.

God Bless,

Janine Turner
P.S. I thank you Horace Cooper for joining us today and for your brilliant insights
Susan Craig says:

May 27, 2010 at 10:09 am

Power corrupts, the founders tried to hedge the access to power so that absolute power could not be concentrated to corrupt absolutely.
marjay says:

May 27, 2010 at 10:27 am

The problem with the National Bank is that when it was created in 1913, it was privatized. Jefferson warned again that. The Federal Reserve Bank is not an entity of the federal government at all. It is a privately owned and operated business. This fact is not commonly known. The bankers who own it have benefit of the interest derived therefrom, coming from loans to the federal government, using money the bank has CREATED. That interest money belongs in the nations coffers, not in the hands of the bankers. Article 1, Section 8, gives CONGRESS the power to coin money and determine its value, not private BANKERS, which is how Lincoln financed the Civil War, after private bankers refused to loan him money. Giving congress that power was a marvelous arrangement, subject to voter approval every two years at election time. That power was delivered up to what I would call “tyrants” when my grandparents were children. The Federal Reserve has never been audited. No doubt such an audit, which should be mandatory, would reveal an amazing history.
Roger Jett says:

May 27, 2010 at 12:55 pm

Charles Babb, While I can readily agree with much of what you said in your post earlier today, I have to ask you to rethink on a couple of things. First of all, I wished you had worded a little differently your phrases, ” The fabric of the American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to to flow immediately from that pure, original fountain of all legitimate authority”. Some might think that I’m arguing semantics , but I don’t think that the two words, “American” and
“empire” should ever fall side by side when the subject is regarding our government. Empires have a single sovereign ruler and they are usually referred to as an “emperor”. I believe what you are saying …. the point that you are emphasizing is that ” the people” are the legitimate authority upon which our elected government officials gain their powers. As Dr. Morrisey points out as he quotes Hamilton, that it is fundamental to a republican form of government which “requires that the sense of the majority should prevail.” However, I’d like to emphasize that under our Constitution there are protections of unalienable rights for the individual as well as rights to the minorities, that government must respect. What may become deemed as the “CONSENT OF THE PEOPLE”, is not necessarily a determinant of what is fair and in the interest of justice. Under that concept, a majority of my neighbors might up and decide to take some of my property for public benefit without making effort to give me just compensation. Fortunately the Constitution even protects us from ourselves in that sense. The stream you speak of is in reality not that pure.
Charles Babb says:

May 27, 2010 at 2:47 pm

@Roger Jett; I certainly can’t argue that point; that was just a copy and paste of Mr. Hamilton’s words. That’s why I included the quotation marks.
Carolyn Attaway says:

May 27, 2010 at 4:38 pm

I find it amazing that with all the writing of how America should form a Federal Government to ensure commerce and national security, the founders wanted to keep the integrity of the free market system sound and thriving. If we travel back to Jamestown, many historians debate that with the Virginia Company being a publically traded company, English America was a corporation before it was a country. Our roots are founded in the entrepreneurial spirit of risk, hard work, and reward.

To borrow the words from the novel “Love and Hate in Jamestown” by David A. Price: In their war for independence and their struggle to create a constitution, the Founders themselves had shown the same pragmatic qualities of mind that rendered Smith a hero. The actions of Smith, like the actions of the Founders, also point to a shared outlook on life; one in which a person does not look inward and wait for life to reveal its answers, for life itself is the one carrying out the interrogation. More than most people, Smith and the Founders attempted to answer the questions that life was constantly asking them-or, rather, the single question it asked them, and asks us, over and over. Life presented them with a series of astonishing possibilities and all-engulfing obstacles, all the while whispering to them:
What are you going to do?
What are you going to do?
What are you going to do?

Have we come to that place in history again?

One has to wonder when our country is being invaded by illegal immigrants of many nationalities by crossing the southern border, and you hear news like this:

“US National Guard troops being sent to the Mexican border will be used to stem the flow of guns and drugs across the frontier and not to enforce US immigration laws, the State Department said Wednesday. The clarification came after the Mexican government urged Washington not to use the additional troops to go after illegal immigrants. President Barack Obama on Tuesday authorized the deployment of up to 1,200 additional troops to border areas but State Department spokesman Philip Crowley told reporters, “It’s not about immigration.” Link: http://www.breitbart.com
Jimmy Green says:

May 27, 2010 at 5:40 pm

Hamilton’s desire to have a Federal Government regulate commerce between the states seems reasonable at first, forgetting momentarily of the disaster this has lead to today. It would I think allow developing a more standard set of trade rules and I suppose it would give foreign nations more confidence in one regulated system instead of dealing with thirteen colonies, or would it. I would almost suggest that left alone the states would develop a set of mutually advantageous trade rules to simply improve trade. Although still for foreign nations it is easier to negotiate one treaty not thirteen.

I think more insightful of weakness in a confederacy is as Hamilton states “want of a judiciary power”. A federal court system with a Supreme Court that unifies and enforces the states with a uniform set of laws is paramount. Again momentarily forgetting the disaster those unelected oracles in robes unleashed on the states via the commerce act among others. It seems obvious any united anything requires a federal court system, or does it.

On the issue of “equal suffrage among the states” it seems correct that in the Union through representation by numbers it would be better balanced. The state with a larger population would have more house members then a state of lesser population. However Hamilton’s belief that giving the minority the ability to stop or hinder the majority is wrong is not always practiced. In the legislature the filibuster by a single congressman is used to delay or obstruct a vote on some proposal or bill.

Interestingly in the U.N. the Security Council is comprised of 5 countries but India with the second largest population after China is not one of them. I’m not sure how the U.N. would be classified. It’s a bizarre organization of the worst kind more akin to a dysfunctional feudal system then anything else.

Many of Hamilton’s beliefs were correct in theory. With hindsight we can trace many of the losses of state sovereignty back directly to these arguments that Hamilton would have not imagined. However the expansion of the Federal Government is, I believe, a simple result of the complacency of the states and people resulting in a power vacuum the Feds were more then happy to fill.
Roger Jett says:

May 27, 2010 at 7:19 pm

Charles Babb, Please accept my apology for the earlier post. As Andy Griffith once said, “the rest of the family is eating chicken for supper, but I’m having crow.” Also, just in case you are wondering, my foot size is a twelve and yes it was a tight fit even in my big mouth.
Kay says:

May 27, 2010 at 10:13 pm

Thank you Dr. Morrissey for walking us through Federalist No. 22! Publius certainly covers a lot of ground in this Federalist Paper! If only our current elected officials would take the time to methodically explain major proposed legislation in this manner. Our “sound bite” culture and collective short attention span does not lend itself to deeply and thoroughly understanding the many issues facing us.

The weaknesses of the Articles of Confederation were many: lack of federal regulation of commerce, including foreign commerce and interstate commerce; the weakness of the state quota system for raising armies; problems of equal suffrage among the states; the weaknesses of the 2/3 majority requirement for important resolutions ; lack of “one Supreme Tribunal,” and overall so many problems with the Articles of Confederation that they were not deemed fixable by amendment. Publius goes on to point out the weakness of a Congress with only one legislative body, and the final and most important flaw: The people never ratified the Articles of Confederation. It is with this final point that my favorite quote from Federalist 22 appears:

“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.”

One of the things I have enjoyed most about reading The Federalist are the quotes like the one above, that leap off the page, and speak to us so clearly, 223 years later. They encapsulate principles that our country has drifted from, and remind us of the intent of the founders. When these principles are followed, our country flourishes. When we drift from them, we stagnate.

If only our founding fathers could come back today, and write a series of Federalist Papers where they analyze our current governmental structure in the same manner they analyze the Articles of Confederation, and methodically itemize all the places our country has deviated from their original founding principles. I have a feeling they would have a hard time confining their essays to 85!

Good night and God Bless!

Cathy Gillespie
Constituting America says:

May 28, 2010 at 1:24 am

Why write many paragraphs when a few lines will do, three lines to be exact, from Alexander Hamilton’s Federalist No. 22?

1. Though the genius of the people of this country..

2. Its opposition contradicts that fundamental maxim of Republican government, which requires that the sense of the majority shall prevail.

3. The fabric of American empire out to rest on the solid basis of THE CONSENT OF THE PEOPLE.

Are these words being honored in our American government today?

God Bless,

Janine Turner
May 27, 2010
I thank our guest scholar, Dr. Will Morrisey, for joining us today!
Jesse Stewart says:

May 29, 2010 at 6:06 pm

Shannon – thanks for your insight re: “big government Hamilton”; it helps to put it in perspective!

What a wonderful group of commenters, what a wonderful exercise! I’m telling everyone I know about Constituting America.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 23 – Cathy Gillespie

Federalist Paper 23, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Article I Section 08, Article II Section 2 Clause 1, Article II Section 2 Clause 2, Article II Section 2 Clause 3, Federalist No. 23, Federalist No. 23

Saturday, May 29th, 2010

As I read Federalist 23, I thought about attacks the United States has endured in the last century: especially the air attack on Pearl Harbor, and September 11, when hijacked commercial airliners were flown into the World Trade Center and the Pentagon, and United Airlines Flight 93 was crashed before it could reach its target. These types of attacks have been unimaginable to the people of the United States, even our leaders at the highest levels of government, until they occur. And the only certainty is that our country will eventually be attacked again, in a new creative way, that we once again cannot imagine.

Alexander Hamilton knew this. His words, “The circumstances that endanger the safety of nations are infinite….” and, “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,” ring true as we remember the wars our country has fought through the years since 1787, and the many times the President has had to send troops into hostile situations.

The founders wisely built checks and balances into our national defense. While the Congress is given the power in Article I, Section 8 to declare war and to raise and support troops, the President is designated as the Commander in Chief in Article II, Section II, a power used broadly by Presidents to send troops where the President has deemed necessary. The War Powers Act of 1973 attempted to clarify and formalize consultation with Congress by the President when sending troops into hostile situations, and put a time limit on troops sent by the President without Congressional approval. The Constitutionality of this law has been questioned, some have advocated for its repeal, and most recently in July, 2008 a bi-partisan Commission led by former Secretaries of State James Baker and Warren Christopher, recommended improvements.

While there is tension between the executive and congressional branches over the parameters of their war powers, it is imperative that our government provide for our defense, and be given the power to do so. Whether it be stopping Hitler and Japan in World War II, halting the spread of communism, as was attempted in Vietnam, or fighting terrorists in Afghanistan and Iraq, our American Troops, directed by our Commander in Chief, have bravely kept our country safe and preserved our liberty.

It is fitting we read Federalist No. 23 on this Memorial Day Weekend. Let us honor those men and women who have sacrificed their lives so that our freedom lives on, and let us be thankful for the wisdom of our founders who knew that providing for the common defense was best left in the hands of our federal government.

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 23 – Janine Turner

Federalist Paper 23, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 22, Federalist No. 23, Federalist No. 23

Saturday, May 29th, 2010

Today, our guest Constitutional Scholar of the day, Mr. Troy Kickler’s, insightful essay states, “Hamilton and other Federalists believed, write constitutional scholars Colleen A. Sheehan and Gary L. McDowell, that interest, reputation, and duty would bind the representatives to the Constitution and public opinion.”

I find this quote intriguing, especially the section ”..duty would bind the representatives to the Constitution and public opinion.” This singular line encapsulates wisdom and inspires reflection.

The first reflection is upon the word, “duty.” Duty seems to be a word that is lost in our American culture today. As the decades descend from World War II, the sense of duty to ones country appears to be diminishing. I looked up the word, “duty,” and found the following definition: ”a social force that binds you to a course of action demanded by that force. ” The definition was followed by a quote by John D. Rockefeller, Jr., ”every right implies a responsibility; every opportunity an obligation, every position, a duty.” Today the focus of America’s representatives as well as many Americans and the American culture seem to be one of self-interest. With the blessing of the Providential rights that are secured for us in our Constitution lay a responsibility. One of those responsibilities is to know, respect and understand the United States Constitution, as well as to encourage others to do so. The same should apply to the American Culture. How far we have drifted from the days when patriotism and love of country were, as President Ronald Reagan said, “in the air.” Is our country perfect? No. But as the Former Senator Patrick Moynihan said, “show me a better one.” We, as patriots who love our country and appreciate the founding principles upon which she was founded, need to rise to counter the palpable negativity that permeates our air today. One has to question whether our Congressional representatives are bound to their duty of their country and constituents, or to themselves.

The second reflection is upon the statement that duty would bind representatives to the “Constitution.” “..bind one to the Constitution.” The more I read the United States Constitution and the Federalist Papers, the more I realize how much we have strayed from the Constitution in cultural thought, personal awareness, legislative acts and supreme court rulings. This slow usurpation is due to a lack of knowledge and by a lack of pressure applied on our representatives to uphold the Constitution’s principles. As a Republic we rule through our representatives, thus, our vote is our voice. The checks and balances of our government begin with us. Thus, I suppose, there is a responsibility that we, as patriots, must own – if our representatives have grown callous and irreverent regarding the Constitution, it is because we have allowed it by our lack of diligence and duty to hold them accountable. How well do they know the United States Constitution? How do they intend to abide by its stipulations? These should be the questions of paramount importance.

The third reflection is upon the two words, “public opinion.” “Duty would bind the representatives to the Constitution and public opinion.” Public opinion seems to be virtually ignored by our representatives today. As mentioned in Federalist Paper No. 22 and in previous papers, Publius had a respect for the “genius of the people.” The American people have a genetic disposition and inherent ability to seek the truth and know the truth and American patriots rise to the challenge of duty. ”The experience of history” has proven this to be a tried and true trait of Americans. All of the attempts by the current branches of government to “reason” their way around the Constitution and govern a Republic without respecting the Constitution, and the history of the American spirit, will do so in vain. Duty to preserve our great country, founding principles, bill of rights and free enterprise will be the Paul Revere ”call to action” of our day.

God Bless,

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 23 – The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union, From the New York Packet (Hamilton)

Daren Bakst, J.D., L.L.M., Federalist Paper 23, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Troy Kickler, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Daren Bakst J.D. L.L.M., Federalist No. 23

Guest Bloggers: Troy Kickler, Ph.D., Director of the North Carolina History Project and Daren Bakst, J.D., L.L.M., Director of Legal and Regulatory Studies at the John Locke Foundation

Friday, May 28th, 2010

Federalist #23

When Alexander Hamilton attended the 1787 Constitutional Convention in Philadelphia, he was thirty-six years old. Despite his young age he was a leading statesman, who was knowledgeable not only regarding current events at home and abroad but also the classics and the historical lessons that they contain. The future, first U.S. Secretary of the Treasury, Hamilton incorporated his political observations and knowledge into The Federalist.

Hamilton penned more than half of The Federalist essays. In them, he pointed out the defects of the Articles of Confederation and argued that the Constitution and the powers that it enumerated to the national government were necessary for the Union’s survival. To remain under the Articles, Hamilton contended, meant certain death for the Union, for the states would continually act in their self-interest and ignore the Union’s interest. Laying the foundation for his reasoning in subsequent commentaries (24-29), the New York lawyer put forth this particular argument in Federalist 23: “The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union.”

When debating Anti-Federalists–those who questioned or opposed the Constitution’s ratification–Hamilton and other Federalists used the word “energetic” to describe a government that had power to fulfill its given responsibilities such as providing for a national defense. An “energetic” government was not one that encroached on individual rights. It meant simply giving life to a dormant national government and allowing it to exercise and fulfill its responsibilities.

In Federalist 23, Hamilton asks what are the proper duties of a national government. He contends they are providing for the common defense, preserving public peace, regulating interstate commerce and foreign trade, and conducting foreign affairs. For the remainder of the essay, Hamilton emphasizes why it is essential for the national government to provide for the common defense and what means are necessary for it to ensure the Union’s longevity.

To charge someone with a responsibility yet not empower them to perform their duty is imprudent. That is what Hamilton believed. In Federalist 23, he writes that if the national government is given the task of providing for the common defense then it should have the necessary authority to do so. Even the framers of the Articles, Hamilton points out, understood this necessity: they allowed Congress to ask the states for unlimited requests for men and money to wage war; however, they erroneously trusted states to provide adequate goods and munitions and men for the national government to use at its discretion. States many times ignored requests.

The assumptions of the framers of the Articles, Hamilton declares, were “ill-founded and illusory,” and he claims that states worked strictly for their self-interests. To make the Union last, a change in governmental structure, Hamilton contends, was imperative: power and the means necessary must be given to the national government to provide for a common defense. To meet this particular end, Hamilton argues that the federal government should, in effect, bypass the states and “extend the laws of the federal government to the individual citizens of America.”

In regards to national defense, Hamilton believes it is “unwise and dangerous” to not give the national government power to provide for a common defense: the 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.” He reminds his political opponents that to withhold such means and power from the national government is counterproductive and welcomes national instability. (Hamilton was aware of the lingering Anti-Federal skepticism and considered many of their objections to be merely nitpicking).

The change in government was needed to preserve national interests, and the proposed federal government was worthy of the people’s trust. Hamilton and other Federalists believed, write constitutional scholars Colleen A. Sheehan and Gary L. McDowell, that “interest, reputation, and duty would bind the representatives to the Constitution and public opinion.” That belief is expressed and implied in Federalist 23.

Although Anti-Federalists and Federalists waged a genuine and intense intellectual battle, both were concerned with protecting American liberties. In many ways, they were champions of freedom and had much in common. Both considered constitutions essential to the existence of a free society, and both believed that restraints should be placed on government. Both would be horrified how far many modern-day lawmakers and constitutional theorists have strayed from original intent.

–Troy Kickler, Ph.D., is Director of the North Carolina History Project and Daren Bakst, J.D., L.L.M., is Director of Legal and Regulatory Studies at the John Locke Foundation.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist Paper No. 24 & 25 – Janine Turner

Federalist Paper 24, Federalist Paper 25, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 24, Federalist No. 24, Federalist No. 25

Tuesday, June 1st, 2010

On this Memorial Day season, 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.

Sometimes it is beyond reach to put ourselves in someone else’s shoes and feel, to the most heightened sense, what it would be like to say good-by to our loved ones for perhaps the last time. Do we take the time to feel empathy for the soldier who has to walk away from his family – mother, father, wife, husband, daughter, son – to be potentially killed out in the field – to die away from family – in perhaps some distant land, in enemy territory, on foreign soil? How frightening this would be.

It is difficult in our daily lives that are hectic with work, pressures, commitments and family responsibilities to really pause to think about the sacrifice our men and women in uniform have made and are making to protect us. Our men and women in uniform were and are the brave, the special, the few and the truly great patriots. Without these soldiers, we, America and Americans, would not be here – plain and simple. The air we breathe, the land we walk, the sky we sketch, the country we call home, is because of the sacrifices of our men and women in uniform.

No matter which war they called their own, they all fought the enemy, whether near or far, whether boots were on the ground, in the air or on the sea, whether the enemy was present or premeditating. As Alexander Hamilton expressed in Federalist Paper No. 24, “ cases are likely to occur under our governments, as well as under those of other nations, which sometimes render a military force in the time of peace, essential to the security of the society.” Thus, an actual battle or a state of ready alert has served the same purpose – the enemy was to know and knew that he would not prevail against men and women who had the Divine right of liberty in their soul, passion in their hearts and the supreme strength of military readiness.

Memorial Day is the day to set aside time and sit down with our children and teach them about our wars and war heroes. It is a time to teach them about the Revolutionary War and the reasons why we fought it. They should know about the soldiers who walked barefoot in the snow, leaving the stain of their blood on the ice and about those soldiers who died miserable deaths as POWs in the stifling bowels of the British ships at sea. They should know about heroes such as Paul Revere, Israel Putnam and Nathan Hale who said, “I only regret that I have but one life to lose for my country.”

We should take a moment during our Memorial Day season, and everyday, to pray for our men and women in uniform. We should teach our children about those who served in the War of 1812 when the British returned, how they burned down the White House and how President James Madison’s wife, Dolly Madison, ran to save the portrait of President George Washington.

They should know about the Civil War, why we fought it and how thousands of our soldiers died from a new type of bullet that shattered their bones. They should know about the horrors of slavery, how it had permeated the world throughout history and yet how, according to William J. Bennett, “the westerners led the world to end the practice.” They should know about how Americans fought Americans claiming hundreds of thousands of soldier’s lives.

They should know about World War I and how the soldiers lined up in rows, one after the other, to be shot or stabbed by swords. They should know about World War II and the almost inconceivable bravery of the soldiers who ran onto the beach to endure the battle of Normandy, which claimed thousands of American lives. They should understand what history has to teach us about the mistakes in politics that bred the tyrants who led millions to slaughter. As Publius teaches us, we should not rule with reason but upon the strong foundation of the lessons of history.

They should know about the Korean War, the Vietnam War and the Communist Regimes that ripped the souls from its people. They should know that our soldiers did not fight or die in vain in Korea or Vietnam because even though the enemy was physically in their field, the enemy’s propaganda permeated and thus threatened our field.

They should know about the soldiers who stood on alert during the Cold War and their willingness to die. (My father is a West Point Military graduate and served in the Air Force. He was one of the first to fly twice the speed of sound, Mach II, in the 1960’s. He flew the B-58 Hustler and was ready to die on his mission to Russia when his country called him to do so.) The cold war was won by the ready willingness of our brave soldiers in uniform and a country who was militarily prepared.

A prepared state is a winning state. Alexander Hamilton wrote in Federalist Paper No. 24, “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.”

Today, we fight in Iraq and Afghanistan. We fight the insurgencies at our borders most especially in Arizona, Texas and California and we fight an elusive enemy that is creeping into our fields. They are creeping both from abroad with violence and from within with the slow usurpation of our founding principles. Alexander Hamilton warns in Federalist Paper No. 25, “For it is a truth which the experience of all ages has attested, that the people are commonly most in danger, when the means of injuring the rights are in the possession of those of whom they entertained the least suspicion.”

A strong and honest government based on the Constitution and ruled by the people through the Constitutional Republic will prevail but only if we, as citizens, know about it and only if our children are raised on the fruits of this knowledge. As Alexander Hamilton states in Federalist Paper No. 25, “It also teaches us, in its application to the United States, how little rights of a feeble government are likely to be respected, even by its own constituents.”

Wars are fought physically and wars are fought mentally. As civil servants we must be alert to the enemy that is amongst us. Alexander Hamilton states in Federalist Paper No. 25, “…every breach of the fundamental laws, though dedicated by necessity, impairs that sacred reverence, which ought to be maintained in the breast of rulers towards the constitution of a country…”

On this Memorial Day season, we begin our mission with an education of the thesis and basis of our country – what we fight for – the United States Constitution and the wisdom, freedoms, righteousness and structure that it upholds.

May God bless all of our service men and women past, present and future, who have fought valiantly for these principles.

God Bless,

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 24 – Cathy Gillespie

Federalist Paper 24, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Article I Section 08, Article II Section 2 Clause 1, Article II Section 2 Clause 2, Article II Section 2 Clause 3, Federalist No. 24, Federalist No. 24

Monday, May 31st, 2010

It is interesting that in the early days of the republic, people feared a standing army. The Pennsylvania and North Carolina Constitutions went so far as to say, “As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up.” This was a legitimate fear, based on history, as Allison Hayward points out in her essay today. (Thank you, Allison, by the way, for your second Guest Blogger essay!! We appreciate your insights!!)

Our founders addressed this possible threat to the peoples’ liberty by placing the power of Commander in Chief with the executive branch (Article II, Section II of the Constitution), but the power to raise armies with the legislative branch (Article I, Section VIII of the Constitution). And they even included a clause which forbade the appropriation of money for the support of an army for any longer period than two years, as a precaution to keeping troops without necessity.

Today, on Memorial Day 2010, most Americans look at our military not with the suspicious eye of our forefathers, but with heartfelt pride and gratitude. Two days ago Rasmussen announced a poll showing that 74% of Americans have a favorable view of the U.S. Military. Only 12% had an unfavorable opinion and 13% weren’t sure.

I believe part of this strong support for our troops is due to the founding fathers’ wise use of checks and balances in structuring the government’s control of the military, balancing power between the legislative and executive branches. The abuses that the anti-federalists feared have not come to pass.

An equally important factor responsible for American support of our troops is the quality of the men and women who, since the elimination of the draft, have chosen to serve. These are brave, selfless men and women – fathers and mothers – who leave their families for years at a time to go to foreign lands and defend freedom. These members of the armed services make sacrifices in their personal life, their financial life, their physical and mental health, and sometimes make the ultimate sacrifice, all to defend our liberty. I am honored and blessed to count many active duty members of the military as friends, and I cannot think of any people with higher character, sense of patriotism and duty to country than these service members.

God bless those who have sacrificed their lives in defense of our freedom, may God be with their families, and may God be with and bless our active duty military and veterans. Our country owes you all a huge debt of gratitude. Thank you, from the bottom of our hearts.

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

A Memorial Day Message from Constituting America

Federalist Paper 24, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie, Federalist Paper Forum 2010 Essays by Janine Turner

On this Memorial Day, 2010, let us remember and give thanks for those who have made the ultimate sacrifice for the preservation of our freedom. Let us honor them by thanking those brave men and women currently serving in our military, and our veterans.

It is fitting that the Federalist Papers we are reading this weekend address our national defense. Thanks to the foresight of our founding fathers, we have the greatest military in the world, and the best men and women serving, all of whom take an oath to “support and defend the Constitution of the United States.”

Thank you to our armed forces, and may God be with you as you perform your duties. You are in our prayers.

Wishing you all a Blessed Memorial Day! God Bless our Troops!

Janine Turner and Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 24 – The Powers Necessary to the Common Defense Further Considered, For the Independent Journal (Hamilton)

Allison Hayward, Federalist Paper 24, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Federalist No. 24, The Articles of Confederation

Guest Blogger: Allison R. Hayward, Vice President for Policy at the Center for Competitive Politics

Monday, May 31st, 2010

Federalist 24

Allison R. Hayward

Federalist 24 continues Hamilton’s argument in favor of strong national government for national security purposes. Here, he addresses the explicit complaint that the Constitution would permit standing armies in peacetime.

Critics of the Constitution feared that standing armies would become either a tool for those in power to seize power in perpetuity, or a means to usurp elected government with a military one. Colonists in America were not far removed from the days of Oliver Cromwell, who after prevailing in the English Civil War became Lord Protector of England, Ireland, Scotland and Wales. Quite possibly the families of many of the colonists reading the Federalist Papers migrated to the New World to escape Cromwell’s Britain (or the Restoration aftermath, plague, fire, and general 17th century misery). Certainly many were familiar with the fall of the Roman Republic at the hands of the Roman General, Julius Caesar. In any case, popular opinion would have feared standing armies as a destabilizing force and a threat to democracy. This is thus a powerful argument that the Federalists need to answer.

Hamilton responds to these critics in several ways. First he implies that these critics misinterpret the constitutional separation of powers. He reminds them that the Constitution places the responsibility for raising an army with Congress, not the President. Moreover, any appropriation may be for no longer than two years. Under this division of authority, the election branch – Congress – which is most responsive to the public, must consent to military mobilization. Unlike the Roman and English examples, sole military authority is denied the American Executive. Moreover, the existing regime under the Articles of Confederation contains no standing army limit. This fact allows Hamilton to imply that the anti-Federalist criticisms are disingenuous.

Moreover, notes Hamilton, the world poses security dangers to America apart from “formal” war. The nation is bordered by territories of Britain, Spain and France, and much of the frontier is inhabited by native Americans. Any of these could threaten Americans (and America) if the nation relaxed its guard. Frontier garrisons in particular require support even during “peace.” Finally, for American to meet its potential as a commercial power, it needs to build a navy, which requires outlays for dockyards –even in peacetime. Hamilton argues that the Constitution properly leaves these decisions to Congress, the people’s elected representatives.

Today, the Pentagon’s proposed budget for the coming fiscal year is $708 billion, including a $56 billion “black budget” for classified programs. About 1.5 million individuals are in the active service, about 560,000 in the Army alone. Notwithstanding concerns voiced through time about the size, expense, and “military industrial complex” the United States has, since World War II, maintained a large professional armed force. Moreover, it has done so under the supervision of the Executive – not, as Hamilton contended, under Congress.

Further, military spending is seen by many Congressmen as an important part of their representative role – not simply to keep the country safe, but to keep constituent military contractors profitable. One wonders what Hamilton might have made of the current political “war” over the military’s budget, in which the Defense Secretary has demanded the end to certain programs. Yet Congress insists on keeping them.

Allison R. Hayward is the Vice President for Policy at the Center for Competitive Politics.

7 Responses to “May 31, 2010 – Federalist No. 24 – The Powers Necessary to the Common Defense Further Considered, For the Independent Journal (Hamilton) – Guest Blogger: Allison R. Hayward, Vice President for Policy at the Center for Competitive Politics.”

gianna cerullo says:

May 31, 2010 at 9:42 am

Great Job Janine! I am impressed with your determination tho I am not at all surprised!

I share your views : )

Juliette is gorgeous !
Susan Craig says:

May 31, 2010 at 10:50 am

I have long felt that America has had a schizophrenic relationship with its military. Stemming from two factors: desire to be a most Christian nation living in peace, and a recognition of human nature. On one hand experience and faith (the insult of the British quartering of troops, desire to live in peace and threaten no man, and a belief that a military in the hands of a tyrant would threaten our liberty) inclined us to wish to do away with standing armies. On the other hand the recognition that the proven, visible ability to fend off invaders and threats allows for security and freedom (freedom requires vigilance). Out of these factors come our constant debate on things military. The Articles of Confederation left it in the hands of the States. In effect in today’s world it would be as if there were no regular army, navy or air force just the various guard units in each state. The opposing view was a standing force sole under Federal jurisdiction a permanent military such as was in existence at the time, uneducated and owing allegiance to the leader a separate ‘career’ path or class. What has developed is an amalgam of these two views a small voluntary standing military which depends in time of strife on a ready militia (national guard). The oath our military takes its oath from top to bottom “protect, preserve and defend the Constitution”. It, also, chooses from educated or those who wish to be educated not from those lacking knowledge or understanding. All of those in the military are instructed as to what is or is not a lawful order and are encouraged to resist any unlawful instruction. Yet to this day we still have the debate how much is sufficient and necessary. We continue to think that a “Peace Dividend” is to be had by the reduction and/or elimination of a standing military.
Fred Mars says:

May 31, 2010 at 5:24 pm

I am a Philadelphia-born Constitutional Libertarian, which is to say that I am not talking about a political party, I am referring specific ideology and not a party platform.

Above all, I feel that the Constitution as it was written, including the Bill of Rights, which is part of the Constitution, And the articled of Confederation from which this nation was born, are the only things that stand between freedom and tyranny. That being said, it is also as relevant today as it was in 18th Century America, that we still require the vigilance of citizens to protect the liberties granted to the people at this nation’s founding.

Sometimes it seems that we are being attacked from many sides, and I do not doubt that it is accurate. We have always been loved and hated by other nations, but mostly we are resented for the very freedoms we enjoy.

All Americans must stand together as one voice in demanding that our Congress repeal the damage caused by the 16th and 17th Amendments, charge Congress with it’s obligations to coin (and print) currency and set the value thereof (and use gold/silver to give it real value) and end the extortion of the Federal Reserve System and it’s collection agency the Internal Revenue Service.

Return the selection of Senators to the State legislatures, who we have elected to represent us in our sovereign States, and remove the two party system from its monopoly on the electoral process.

Instead of election day, each State may have an election week, and hand-written ballots used instead of electronic machines and mail-in ballots. Because of the importance of votes, it must be done in such a way as to insure the integrity of the system for all citizens.

We must save our nation by restoring Constitutional integrity to the federal government, and control of the armed forces returned to Congress. The President only assumes status of Commander in Chief when a war is declared by Congress, and then power is voided after the war is over or two years unless Congress acts too extend the war and hence Presidential powers beyond two years. But not in perpetuity.
Constituting America says:

May 31, 2010 at 9:59 pm

It is interesting that in the early days of the republic, people feared a standing army. The Pennsylvania and North Carolina Constitutions went so far as to say, “As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up.” This was a legitimate fear, based on history, as Allison Hayward points out in her essay today. (Thank you, Allison, by the way, for your second Guest Blogger essay!! We appreciate your insights!!)

Our founders addressed this possible threat to the peoples’ liberty by placing the power of Commander in Chief with the executive branch (Article II, Section II of the Constitution), but the power to raise armies with the legislative branch (Article I, Section VIII of the Constitution). And they even included a clause which forbade the appropriation of money for the support of an army for any longer period than two years, as a precaution to keeping troops without necessity.

Today, on Memorial Day 2010, most Americans look at our military not with the suspicious eye of our forefathers, but with heartfelt pride and gratitude. Two days ago Rasmussen announced a poll showing that 74% of Americans have a favorable view of the U.S. Military. Only 12% had an unfavorable opinion and 13% weren’t sure.

I believe part of this strong support for our troops is due to the founding fathers’ wise use of checks and balances in structuring their control. The abuses that the anti-federalists feared have not come to pass.

An equally important factor responsible for American support of our troops is the quality of the men and women who, since the elimination of the draft, have chosen to serve. These are brave, selfless men and women – fathers and mothers – who leave their families for years at a time to go to foreign lands and defend freedom. These members of the armed services make sacrifices in their personal life, their financial life, their physical and mental health, and sometimes make the ultimate sacrifice, all to defend our liberty. I am honored and blessed to count many active duty members of the military as friends, and I cannot think of any people with higher character, sense of patriotism and duty to country than these service members.

God bless those who have sacrificed their lives in defense of our freedom, may God be with their families, and may God be with and bless our active duty military and veterans. Our country owes you all a huge debt of gratitude. Thank you, from the bottom of our hearts.

Cathy Gillespie
Susan Craig says:

May 31, 2010 at 10:09 pm

@Fred, welcome. I consider myself a fiscal and social conservative with libertarian leanings. As I continue to read the Federalist debate and early American History while watching the shenanigans of today, I must say I could inveigh against all factionalism along with the most vehement of our Founding Fathers. I see it in the stasis in Washington and it is part and parcel of the intellectually incurious who have voted the line since Methuselah was in diapers.
Gary Tillery says:

May 31, 2010 at 10:14 pm

As a veteran, I stand with other Veterans who have served this nation with dignity, courage, and honor. In our time, which young people today see as antiquated, we saw the Constitution as a document representing the very heart of America. Even though we were divided by different beliefs in life the Constitution was the very umbrella that kept us united as one people. Different states (republics) but one nation. It was to be honored,cherished, and respected. Due to that belief, when we as veterans went to battle to serve our nation we did so with committment, dedication, pride. Unfortuinatley, people today do not talk this way anymore for they have so taken the Constitution and freedom for granted that they, as we speak, are in danger of losing their freedom.
The Constitution is like the Ten Commandments – When we look at them both is reveals to us the goals we strive to reach. Yet, at the same time it shows us our weaknesses and vulnerablities. When we vote, we should look and ask each candidate their interpretations of the Constitution and how their campaign is based on the Constitution. Yes, They need to prove themselves from here on out. We can no longer take their word for anything. I would be interested in how many of our politicians today truly can tell you about the FEDERAL PAPERS and the CONSTITUTION. Because by the actions of our some current government officials they do not mind violating it.
It is our obligation, as young and old Americans, to protect the Constutution and remove any politician that violates it. That is why we all, old and young, need to know the Constitution and keep it in the forefront of our minds when it comes to politics. For those of us who served, risked, and watched friends die, it is heart wrenching to see the real threat of Socialism creeping in the back door knowing that all the sacrifice could be for nothing if our children/grandchildren live under any other form of government than a Constitutional Democracy. For God and Country. God give the youth of today the courage to stand for Democracy.
Maggie says:

June 1, 2010 at 9:16 am

@ Gary….I agree with everything you said, with the exception of our children living under a Democracy. We are NOT a democracy…we are a Republic. This is one of the big problems we have today. People don’t even realize what form of government we are supposed to have. How, then, can they protect and keep it?

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

We The People 9.17 Contest Update and Federalist No. 25 – Cathy Gillespie

Federalist Paper 25, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 24, Federalist No. 25, Federalist No. 25

Wednesday, June 2nd, 2010

DON’T MISS!! Juliette Turner’s newest video about our contest: http://www.youtube.com/watch?v=pNnhC3F5nJE

We are almost one month away from our We The People 9.17 Contest entry deadline of July 4. We need everyone’s help in recruiting kids to enter! We have been told email is the most effective means of recruiting entries and spreading the word, so please feel free to cut and paste this blog and circulate it to your email list.

Constituting America is seeking high school students to submit entertaining short films, public service announcements, cool songs, and of course, essays by July 4th for our We The People 9.17 Contest!! We have a good number of essays, but not as many short films, public service announcements and songs as we were hoping for, so if you know any high school students who have a talent for making movies, or composing and singing songs, please direct them to: http://www.constitutingamerica.org/downloads.php for more information, rules and to sign up online! Prizes for high schoolers include $2,000, a trip to Philadelphia on September 17 (Constitution Day), and Governor Huckabee has invited the contest winners on his show! The National Constitution Center has offered to show the winning short film in their theatre, and highlight our contest winners in their Constitution Day events.

Constituting America is seeking Middle School Students to enter cool SONGS and well written essays!! We have a good number of essays, but not as many songs as we were hoping for! Please spread the word to any Middle School kids you know, especially those who like to compose and sing, and direct them to: http://www.constitutingamerica.org/downloads.php for more details, and to sign up online!! Prizes for Middle School kids include gift cards, publicity on the Constituting America website, and other cool surprises!

And, calling all Elementary Schools kids who like to write poems or draw! We need poems, and art for a holiday greeting card! Again, please see: http://www.constitutingamerica.org/downloads.php for rules and details, and to sign up for the contest online!! Prizes for Elementary School kids include gift cards, publicity on the Constituting America website, and other cool surprises.

If school is still in session in your area, please contact social studies teachers, art departments, music departments, and theatre/film departments! This is a great project to fill those last days of school when teachers have possibly run out of curriculum or want to give students a chance to earn some extra credit! Church youth groups are another possiblity. And if anyone has ideas or ways to get the word out to the military about this contest, we would love your help in doing so!

As for Federalist No. 25 – first of all, thank you Professor Knipprath! I echo Susan in saying I always look forward to your posts. And what a beautiful essay Janine wrote on Federalist 24 & 25. I am not sure I have ever read a better tribute to the troops for Memorial Day.

Like Greg, Professor Knipprath’s line: “Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action,” especially resonated with me. It seems that more and more frequently, “crisis,” is used to justify the government creeping into areas of our lives, and the marketplace, where our founding fathers never intended it to go.

In Federalist 24, Hamilton used a phrase I love – he describes the American people as “so jealous of their liberties.” If we can once again become a people educated about and “jealous of our liberties,” we can begin to roll back some of the government encroachment the founding fathers tried to guard against. We must stay alert and awake!

A hard task at 2:26 a.m. as I write this post!

Good night and God Bless,

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 24 & 25 – Janine Turner

Tuesday, June 1st, 2010

May God bless all of our service men and women past, present and future, who have fought valiantly for these principles.

God Bless,

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 25 – The Same Subject Continued: The Powers Necessary to the Common Defense Further Considered, From the New York Packet (Hamilton)

Federalist Paper 25, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 24, Federalist No. 25, Joerg W. Knipprath

Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

Monday, May 31st, 2010

Alexander Hamilton began his Revolutionary War service as a member of a New York militia unit. He then joined the Continental Army as an artillery officer and became General Washington’s adjutant in 1777. After resigning that post, he persuaded Washington to give him a position as a field commander at the decisive Battle of Yorktown in 1781. From his experience as line officer and staff member, Hamilton was well aware of the capabilities of a trained army and those of the militia. More, in 1783, the Confederation Congress had appointed Hamilton to head a committee to investigate the creation of a standing army.

That background stands out in Federalist No. 25. Supporting Congress’s power to create a standing army, Hamilton rejects the argument that, if there is to be such an institution, it should be under the control of the states. Hamilton also rejects a more moderate position supported by Brutus and other Antifederalists that the national government be permitted to raise and keep troops for frontier duty and to counter threatened attacks, but not to keep armies generally during peacetime. He uses a rather trite “where-do-we-draw-the-line” argument to defend drawing no line at all. Brutus has a ready response: Just specify the purposes for which peacetime troops may be raised and kept, and require a two-thirds vote for Congress to act.

But, rejoins Hamilton, “how easy would it be to fabricate pretences [sic] of approaching danger?” A peacetime army might be kept up, through collaboration between Congress and the President, on the flimsiest of excuses and for however long they judge the danger to exist for their own political ends.” Hence, there should be no restriction on Congress’s power to raise and keep a peacetime army. Because a limited power might be abused, there must be an unlimited power? It is this logical leap that the Antifederalists reject.

Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action. As Publius notes in several other essays, government thrives on crisis, while individual liberty shrivels. Power flows from the individual to government, from local governments to the central government, and from the legislative and judicial branches to the executive. Such crises fuel an explosion of political energy that produce dangerously excessive unity over individuality, and conformity over liberty, at least temporarily. Government officials gain from such crises, be they real or contrived. “Never let a good crisis go to waste,” is a brilliantly apt aphorism of this phenomenon. Wars and natural disasters are real crises, but one frequently hears crisis terminology used to describe more run-of-the-mill political issues, from “wars” on poverty and drugs to health care and obesity “crises,” to justify government intrusion into individual autonomy. Not long ago, there was even a “hidden” child care crisis, with government efforts made all the more critical because the crisis was so insidious no one recognized it.

Hamilton also anticipates the assertion that the militia suffices for the national defense, an argument he roundly rejects. This was a particularly sensitive ideological issue for Americans of the time. The myth of the citizen-soldier was a powerful republican tale. The ideal soldier was Cincinnatus, the Roman consul-turned-farmer who was subsequently called to be dictator and general during a war, which offices he resigned upon successful completion of the military campaign. He then returned to his farm. Making this republican myth concrete for Americans was that they had their own Cincinnatus in the person of George Washington. Revolutionary War officers formed the Society of the Cincinnati to promote this republican ideal.

The militia embodies the ethos of the citizen-soldier. Hamilton pays due homage, but recognizes the inferiority of the militia to a regular army in sustained military operations. “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 feel and know, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were.” As he noted in Federalist 24, even in peacetime the militia would be unsuited to perform regular soldiering duties such as guarding the frontier. “The militia, in times of profound peace, would not long, if at all, submit to be dragged from their occupations and families, to perform that most disagreeable duty.” Worse, he declares, is the economic inefficiency of compelling the militia to such service, produced by a loss of labor and industrious pursuits and by the expense to the society of frequent rotation of the militia. Since militia service was universal for adult males of a wide age range, such burdens would be even more objectionable than if they fell on a body of citizen volunteers, such as today’s National Guard.

Our current military system depends on a combination of a professional standing army in active service and volunteers in the National Guard and in various reserve units. The system has advantages in training and professionalism, which become more important as the technology in fighting becomes ever more complex. The war-fighting skills of the massed citizen soldiers of the ancient Athenian hoplite formation or of the Roman legion were relatively simple to master. Today’s warfare is infinitely more complex, and continuous campaigns are measured in years, not weeks. Relying on citizen-soldiers, even volunteers in the National Guard, for long commitments produces hardships and economic dislocation, as news reports often point out. This is well worth remembering when politicians blithely call for a state’s national guard to be deployed to guard the frontier against trespassing aliens, or when cuts in the defense budget are proposed while the scope of military commitments abroad continues at a high level.

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. Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums. His website is http://www.tokenconservative.com.

15 Responses to “June 1, 2010 – Federalist No. 25 – The Same Subject Continued: The Powers Necessary to the Common Defense Further Considered, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”

Susan Craig says:

June 1, 2010 at 9:13 am

On an average there is at least one sentence per paper that brings me up short. This papers contribution is: “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.”
Ron Meier says:

June 1, 2010 at 11:33 am

Some interesting stats to consider. About 60 years ago, before the Korean War, our population was about 150 million; today it’s about 310 million. Before the Korean War, we had a standing peacetime Army and Marines of about 15 Divisions; today, our standing Army and Marines, in time of war, is about 13 Divisions. Before the Korean War, we were not at war; today, we’ve been at war for 9 years and yet have not increased the size of our active Divisions. We’ve actually decreased them, in spite of a 100% increase in population. I don’t know what an appropriate size is of a standing military in time of peace, but it seems to me that, during a time of war, there should be some kind of increase. I don’t think our current military size is a threat to our population, given the 100% increase in popluation and the decline in the standing military, but I do think that it is inadequate to perform our multiple missions without having our professional volunteers burn out with family stress that comes from the multiple deployments that are today’s reality.
W. B. Neate says:

June 1, 2010 at 1:34 pm

First let me add my thanks to Janine and Cathy for this wonderful forum.

I would agree with Ron Meier that in the manner our military has been used our smaller force has caused undue hardship on those who serve and their families as well. I would suggest, however, that with our superior military technological capabilities, we have badly mismanaged the use of our forces.

The scope and techniques of our armed forces activities are dictated by our political leaders. Of the 535 members of the 111th Congress only 121 are veterans. This is less than 25% and this percentage declines with each new congress. The major concerns seem to be political correctness and collateral damage. I don’t think political correctness was even a “buzz phrase” during WWII and had we been overly concerned about collateral damage we would have never dropped the atomic bomb which ended that great war. I am not a war monger but do believe that whatever might we have we should be willing to use if we are to engage in warfare and I am much less concerned about collateral damage in foreign lands than I am about the lives of our young men and women who serve so selflessly. War is hell and “playing nice” is not only too costly but encourages our adversaries.

Having stated this position I would like to suggest that there exists at least three good reasons for required national service; 1) fresh troops to take some of the burden from our career military personnel, 2) a larger pool of those who have truly served our country from whom we might choose future leaders and 3) a larger number of future Americans with greater sense of national pride that can only be gained via service to country or close relationships with those who serve. As a Viet Nam era veteran I can assure you that I see this deep sense of patriotism diminishing as time goes by.

Please note that in the preceding paragraph I used the phrase “required national service” as opposed to suggesting a re-institution of the draft. I think all young people should serve but also think they should have the choice of opting out of military service if they choose. We have plenty of other areas where service could be applied.
Susan Craig says:

June 1, 2010 at 2:57 pm

@W.B., I agree about the ‘required national service’. If it can be kept out of the political paws, I think things like Vista and Peace Corps should be offered as viable options for national service.
Jimmy Green says:

June 1, 2010 at 5:12 pm

It’s natural to accept a professional standing army as better equipped and trained than a militia and the control resting in the Federal Governments hands instead of the states is obvious to me. Hamilton’s experience in the military makes this quite clear. I believe he short changes himself somewhat by not heeding more seriously the concerns about the inherent dangers of our liberties that could result from a standing army. I have not yet read the anti federalist papers but the point mentioned by the Anti federalists according to Prof. Knipprath “that the national government be permitted to raise and keep troops for frontier duty and to counter threatened attacks, but not to keep armies generally during peacetime”. Seems to be a practical approach. This would be somewhat like a trip wire giving us warning of an approaching storm without incurring the high cost and inherent dangers of a continual standing army.

Under the scenario of the Anti Federalists I wonder if our military would have been used in past conflicts such a Somalia or Bosnia or any U.N. police actions which I doubt the founding fathers would have agreed with. Also something that bothers me were incidents such as the Pennsylvania mutiny in 1783 by a small part of the Continental Army over pay. If I remember this was one of the reasons the Federal Government relocated away from Philadelphia and eventually established the federal district of Washington D.C. Is there any chance of this reoccurring if our economy takes a serious nosedive beyond anything we have experienced so far?

George Washington in his farewell address stated “Overgrown military establishments are, under any form of government, inauspicious to liberty, and are to be regarded as particularly hostile to republican liberty.”

Another General who became president, Dwight D. Eisenhower warned in his farewell speech of 1961 “In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.”

I grew up as a kid on a Marine Corps base “Camp Lejeune” so I know the professionalism and power of our armed forces. In reading history it seems some of our most prominent members of America and other countries understood the value of a standing army but also gave us stern advice on the inherent dangers. Let’s hope we understand both clearly and use the military in the interest of our country only.
Constituting America says:

June 1, 2010 at 6:30 pm

On this Memorial Day season, 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.

Sometimes it is beyond reach to put ourselves in someone else’s shoes and feel, to the most heightened sense, what it would be like to say good-by to our loved ones for perhaps the last time. Do we take the time to feel empathy for the soldier who has to walk away from his family – mother, father, wife, husband, daughter, son – to be potentially killed out in the field – to die away from family – in perhaps some distant land, in enemy territory, on foreign soil? How frightening this would be.

It is difficult in our daily lives that are hectic with work, pressures, commitments and family responsibilities to really pause to think about the sacrifice our men and women in uniform have made and are making to protect us. Our men and women in uniform were and are the brave, the special, the few and the truly great patriots. Without these soldiers, we, America and Americans, would not be here – plain and simple. The air we breathe, the land we walk, the sky we sketch, the country we call home, is because of the sacrifices of our men and women in uniform.

No matter which war they called their own, they all fought the enemy, whether near or far, whether boots were on the ground, in the air or on the sea, whether the enemy was present or premeditating. As Alexander Hamilton expressed in Federalist Paper No. 24, “ cases are likely to occur under our governments, as well as under those of other nations, which sometimes render a military force in the time of peace, essential to the security of the society.” Thus, an actual battle or a state of ready alert has served the same purpose – the enemy was to know and knew that he would not prevail against men and women who had the Divine right of liberty in their soul, passion in their hearts and the supreme strength of military readiness.

Memorial Day is the day to set aside time and sit down with our children and teach them about our wars and war heroes. It is a time to teach them about the Revolutionary War and the reasons why we fought it. They should know about the soldiers who walked barefoot in the snow, leaving the stain of their blood on the ice and about those soldiers who died miserable deaths as POWs in the stifling bowels of the British ships at sea. They should know about heroes such as Paul Revere, Israel Putnam and Nathan Hale who said, “I only regret that I have but one life to lose for my country.”

We should take a moment during our Memorial Day season, and everyday, to pray for our men and women in uniform. We should teach our children about those who served in the War of 1812 when the British returned, how they burned down the White House and how President James Madison’s wife, Dolly Madison, ran to save the portrait of President George Washington.

They should know about the Civil War, why we fought it and how thousands of our soldiers died from a new type of bullet that shattered their bones. They should know about the horrors of slavery, how it had permeated the world throughout history and yet how, according to William J. Bennett, “the westerners led the world to end the practice.” They should know about how Americans fought Americans claiming hundreds of thousands of soldier’s lives.

They should know about World War I and how the soldiers lined up in rows, one after the other, to be shot or stabbed by swords. They should know about World War II and the almost inconceivable bravery of the soldiers who ran onto the beach to endure the battle of Normandy, which claimed thousands of American lives. They should understand what history has to teach us about the mistakes in politics that bred the tyrants who led millions to slaughter. As Publius teaches us, we should not rule with reason but upon the strong foundation of the lessons of history.

They should know about the Korean War, the Vietnam War and the Communist Regimes that ripped the souls from its people. They should know that our soldiers did not fight or die in vain in Korea or Vietnam because even though the enemy was physically in their field, the enemy’s propaganda permeated and thus threatened our field.

They should know about the soldiers who stood on alert during the Cold War and their willingness to die. (My father is a West Point Military graduate and served in the Air Force. He was one of the first to fly twice the speed of sound, Mach II, in the 1960’s. He flew the B-58 Hustler and was ready to die on his mission to Russia when his country called him to do so.) The cold war was won by the ready willingness of our brave soldiers in uniform and a country who was militarily prepared.

A prepared state is a winning state. Alexander Hamilton wrote in Federalist Paper No. 24, “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.”

Today, we fight in Iraq and Afghanistan. We fight the insurgencies at our borders most especially in Arizona, Texas and California and we fight an elusive enemy that is creeping into our fields. They are creeping both from abroad with violence and from within with the slow usurpation of our founding principles. Alexander Hamilton warns in Federalist Paper No. 25, “For it is a truth which the experience of all ages has attested, that the people are commonly most in danger, when the means of injuring the rights are in the possession of those of whom they entertained the least suspicion.”

A strong and honest government based on the Constitution and ruled by the people through the Constitutional Republic will prevail but only if we, as citizens, know about it and only if our children are raised on the fruits of this knowledge. As Alexander Hamilton states in Federalist Paper No. 25, “It also teaches us, in its application to the United States, how little rights of a feeble government are likely to be respected, even by its own constituents.”

Wars are fought physically and wars are fought mentally. As civil servants we must be alert to the enemy that is amongst us. Alexander Hamilton states in Federalist Paper No. 25, “…every breach of the fundamental laws, though dedicated by necessity, impairs that sacred reverence, which ought to be maintained in the breast of rulers towards the constitution of a country…”

On this Memorial Day season, we begin our mission with an education of the thesis and basis of our country – what we fight for – the United States Constitution and the wisdom, freedoms, righteousness and structure that it upholds.

May God bless all of our service men and women past, present and future, who have fought valiantly for these principles.

God Bless,

Janine Turner
June 1, 2010
Constituting America says:

June 1, 2010 at 6:36 pm

W.B. Neate – I thank you for your kind words! And I thank all of you great patriots for joining us and for being a part of our blog. I am learning so much from your perspectives!
God Bless.. Janine
Susan Craig says:

June 1, 2010 at 7:46 pm

To Professor Joerg Knipprath: Thank you I look forward to each of you posting with anticipation.
Joerg Knipprath says:

June 1, 2010 at 9:23 pm

Great comments again, and, as Janine writes, especially fitting on Memorial Day. Susan, that quote is from Fed. 28, I believe, but it is a very important principle that many of the founders had actually lived. It also fits well with the historical purpose behind the Second Amendment, which protects people’s right to own weapons. Although that right extends to personal self-defense, those who adopted it were keenly aware of the right of self-defense against a tyranny by the people organizing themselves into a militia. Kind of a “nuclear option,” if all other means have failed. But that’s a whole other topic.
Greg Zorbach says:

June 1, 2010 at 11:19 pm

Upon reading #24 this caught my eye: “…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.” I found myself thinking not of today’s army or navy, but rather the current administration’s response to the immigration, financial and health care ‘crises’. Then today, right on cue, Professor Knipprath’s comments on #25: “Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action.”
One of the basic differences between the two political parties, or if that is too confining for your tastes, for those on the left vs. those who are ‘conservative, is that the statists (as Mark Levin accurately calls them) believe that government is the answer to all problems. But the basic inconvenient truth countering that is that our country was founded on the premise of individual liberties and limited government. These days even the most sincere calls for civility and ‘bipartisanship’ can’t bridge that divide.
That statist mentality is what leads the left to call for all solutions to be ‘comprehensive.’ How else could the government solve a problem if its not a total-control solution.
I have detected a similar strain in some of these blogs. Don’t get me wrong, this forum and all of its participants are demonstrating exactly the kind of involvement required in these times. However, we cannot realistically expect a complete and immediate return to the kind of government we are reading about in these timeless papers.
History teaches us a lot. And, it has much to teach us about the time that this great country has been in existence (i.e. since these papers were written). For instance, all of these concerns about standing armies have been proven to be groundless. As one of the Pope Pius’s put it (paraphrasing here) there has been no greater institution for good in the world than the United States Army. General Colin Powell put it this way: “In all the wars America has fought in this century, we have sought no more land in conquest than enough to bury our dead.”
Re. Jimmy Green: George Washington also said this: “To be prepared for war is one of the most effectual means of preserving peace.”
More applicable quotes:
“Let us speak courteously, deal fairly, and keep ourselves armed and ready.” –Theodore Roosevelt
“Whatever enables us to go to war, secures our peace.” –Thomas Jefferson
“The urge to save humanity is always a false front for the urge to rule it.” — H.L. Mencken
Constituting America says:

June 2, 2010 at 2:36 am

Juliette’s newest video about our contest: http://www.youtube.com/watch?v=pNnhC3F5nJE

We are almost one month away from our We The People 9.17 Contest entry deadline of July 4. We need everyone’s help in recruiting kids to enter! We have been told email is the most effective means of recruiting entries and spreading the word, so please feel free to cut and paste this blog and circulate it to your email list.

Constituting America is seeking high school students to submit entertaining short films, public service announcements, cool songs, and of course, essays by July 4th for our We The People 9.17 Contest!! We have a good number of essays, but not as many short films, public service announcements and songs as we were hoping for, so if you know any high school students who have a talent for making movies, or composing and singing songs, please direct them to: http://www.constitutingamerica.org/downloads.php for more information, rules and to sign up online! Prizes for high schoolers include $2,000, a trip to Philadelphia on September 17 (Constitution Day), and Governor Huckabee has invited the contest winners on his show! The National Constitution Center has offered to show the winning short film in their theatre, and highlight our contest winners in their Constitution Day events.

Constituting America is seeking Middle School Students to enter cool SONGS and well written essays!! We have a good number of essays, but not as many songs as we were hoping for! Please spread the word to any Middle School kids you know, especially those who like to compose and sing, and direct them to: http://www.constitutingamerica.org/downloads.php for more details, and to sign up online!! Prizes for Middle School kids include gift cards, publicity on the Constituting America website, and other cool surprises!

And, calling all Elementary Schools kids who like to write poems or draw! We need poems, and art for a holiday greeting card! Again, please see: http://www.constitutingamerica.org/downloads.php for rules and details, and to sign up for the contest online!! Prizes for Elementary School kids include gift cards, publicity on the Constituting America website, and other cool surprises.

If school is still in session in your area, please contact social studies teachers, art departments, music departments, and theatre/film departments! This is a great project to fill those last days of school when teachers have possibly run out of curriculum or want to give students a chance to earn some extra credit! Church youth groups are another possiblity. And if anyone has ideas or ways to get the word out to the military about this contest, we would love your help in doing so!

As for Federalist No. 25 – first of all, thank you Professor Knipprath! I echo Susan in saying I always look forward to your posts. And what a beautiful essay Janine wrote on Federalist 24 & 25. I am not sure I have ever read a better tribute to the troops for Memorial Day. Like Greg, Professor Knipprath’s line: “Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action,” especially resonated with me. It seems that more and more frequently, “crisis,” is used to justify the government creeping into areas of our lives, and the marketplace, where our founding fathers never intended it to go.

In Federalist 24, Hamilton used a phrase I love – he describes the American people as “so jealous of their liberties.” If we can once again become a people educated about and “jealous of our liberties,” we can begin to roll back some of the government encroachment the founding fathers tried to guard against. We must stay alert and awake!

A hard task at 2:26 a.m. as I write this post!

Good night and God Bless,

Cathy Gillespie
Susan Craig says:

June 2, 2010 at 8:10 am

Oops caught me out; reading ahead the quote is as you say, Professor.
ryan says:

June 2, 2010 at 10:47 am

Professor Knipprath is my absolute favorite guest blogger. Today’s is particularly excellent!!
Susan Craig says:

June 2, 2010 at 11:17 am

I’m with you, Ryan. I especially like that he revisits his blogs and adds clarification and answers questions.
Neb Witt says:

June 2, 2010 at 3:27 pm

Sorry for the delay in posting, I wanted to read the essay first. I must say these are really remarkable. They have debates a lot like my grandparents said used to happen when they were kids.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 26 – Janine Turner

Federalist Paper 26, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 26, Federalist No. 26

Wednesday, June 2nd, 2010

“…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 anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

When I read these words of Alexander Hamilton, I think to myself, “ WHAT HAPPENED?” This is one of the absolute best paragraphs in the Federalist Papers! When one wants to know what’s the big deal about the Federalist Papers, when someone wants to know why the United States Constitution important, when someone says, “We haven’t strayed that much from the Constitution,” I would direct them to this paragraph in Federalist Paper No. 26.

These are the words that define the vision of our founding fathers, and the structure of the United States Constitution, in regard to restraining the federal government.

“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 anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

Have we proceeded too far to save America? Will we ever get back to the true intention of our Constitutional government? Will American’s ever cut the umbilical cord?
Are we to watch our flag burning in the street as citizens insist that the government owes them benefits? Will the age of entitlement ever be replaced by the original age of entrepreneurial vigor? Are we to sink on the same ship as Greece? Our GNP is projected to meet Greece’s GNP by 2020.

How will America survive?

If American’s do not know what they have they will not know when it is slowly being taken away from them.

As Alexander Hamilton states,“Schemes to subvert the liberties of a great community, require time to mature them to execution.”

The time has come and the alarm must sound before it is too late. What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.

The tenth amendment needs to be revisited and rekindled.

We must act now before America’s great liberties are swallowed into the great abyss of socialism and democracy fails – but this will happen only if we let it. We must be the VOICE and the ARM of discontent. The best way to do this is by education. We must educate our friends, our family, our neighbors, our CHILDREN about the United States Constitution, the Federalist Papers and our country’s founding principles.
We must be vigilant!

It begins with YOU. Spread the word about our website and “90 in 90,” and our contest for kids!

God bless you!!
God bless America.

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 26 – Cathy Gillespie

Federalist Paper 26, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 26, Federalist No. 26

Wednesday, June 2nd, 2010

Thanks to everyone who joined our discussion today, and to our Guest Constitutional Scholar Bloggers, Daren Bakst and Troy Kickler!

I asked you all last night to help us recruit kids to enter the We The People 9.17 Contest, Entries due July 4! Thank you!! We have had several new online signups today at https://constitutingamerica.org/contestsignup.php Please keep spreading the word!!

Here is one additional request – as you recruit young people to the contest, please ask their parents, and the older kids, to join us on this blog! We learn so much from each other. The more people we have participating, the more we learn!!

Tonight, the first paragraph of Federalist #26 grabbed my attention. I even printed it off and carried it down the hall to show my husband who was trying to watch TV in peace! But as he read the sentences below, he agreed – these words ARE relevant today:

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.

I admit I had to look up a few words. I had a vague understanding of their meanings, but reading the definitions added to the richness of Hamilton’s message.

ameliorate – to make or become better, more bearable, or more satisfactory; improve; meliorate.

chimerical – 1 : existing only as the product of unchecked imagination : fantastically visionary or improbable
2 : given to fantastic schemes

Even though Publius uses this first paragraph to make his case for the legislature to have the power to provide for national defense, these words reverberate with meaning, as I think of the numerous ways the balance between “legislative power and liberty” (thank you Mr. Bakst & Kickler for that phrase) has been disrupted.

Our founders created a system of checks and balances, and nothing less than our freedom is dependent upon its equilibrium. Whether we tip too far towards anarchy, as Hamilton feared if the legislature wasn’t granted the power to provide for the national defense, or too far towards government control in our lives, the result is a deviation from the system of government our founding fathers so carefully designed. When “We the people” allow the government to get out of balance, we allow our liberty to fade, creating those “inconveniences,” Hamilton references, and we fail to make “any material change for the better.”

Good night and God Bless!

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 26 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, For the Independent Journal (Hamilton)

Daren Bakst, J.D., L.L.M., Federalist Paper 26, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Troy Kickler, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Daren Bakst J.D. L.L.M., Federalist No. 26, Troy Kickler PhD

Guest Bloggers: Daren Bakst, J.D., LL.M., Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., Director of the North Carolina History Project

Wednesday, June 2nd, 2010

At the start of Federalist No. 26, Alexander Hamilton addresses the challenging balancing act required between legislative power and liberty. Using this as a jumping off point, he makes the case that the legislature must have the power to provide for the national defense.

While he acknowledges the balancing of interests, he argues that the scales tip toward having strong legislative power when it comes to national defense. Restraining legislative authority in the area of national defense “is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened.”

He explains that it would “endanger the public safety” if there were “impolitic restrictions on the legislative authority.” He goes on to suggest that anarchy would result and the American people would not support such an anarchy.

Hamilton then turns his attention to the question of standing armies during peacetime. Pointing to England, he explains how it had lived under the rule of monarchs who had almost unlimited power. After the Revolution of 1688, the monarch’s power to raise armies was drastically reduced.

The only manner in which an army could exist in peacetime was with the consent of the Parliament. As Hamilton argues, even in England where the desire for liberty during this time was great, the only restraint believed necessary was to prohibit the executive from having sole power to raise armies.

The British revolutionaries who fought for liberty knew that there was a need for troops in peacetime. There always needed to be troops ready to meet any contingency that faced the nation. By placing power with the legislature, this was the proper balance between liberty and public safety.

According to Anti-Federalists, in particular Brutus in his “Tenth Letter,” those opposed to standing armies in peacetime were concerned with executives gaining excessive power. To support this argument, they used Rome and Britain as examples.

In Rome, writes Brutus, Julius Caesar changed “it [Rome] from a free republic…into that of the most absolute despotism.” In Britain, the armies had been used by Oliver Cromwell to take away the people’s liberty.

Hamilton though counters these concerns by stressing the role of the legislature. One key protection was the appropriations process. The legislature must, every two years, vote on whether to allow a military force. Their constituents could hold them accountable at the ballot box if their actions were inconsistent with their will.

Further, according to Hamilton, state legislatures would protect their citizens. Hamilton saw a strong federalist system where states fought against the encroachments by the federal government. States would not simply voice their concerns, but they would be the vehicles by which the citizens would be protected.

Since Hamilton’s time, a key component to the power of state legislatures has been lost. Until 1913, state legislatures had the power to elect Senators. They were not elected like they are now by a direct vote of the people. This was a major check that states possessed in preventing excessive national power.

However, under the current system, state governments are mere shadows of what Hamilton envisioned. This does undercut his argument. The federal government has become a behemoth with state governments beholden to it due to an over-reliance on federal funds.

Fortunately, the military has never posed a significant threat to domestic tranquility. This can be attributed to numerous factors, including the legislative check on executive power that Hamilton articulates in Federalist No. 26. Given our country’s past and current foreign threats, he appears to have been correct in espousing the need for a standing army in peacetime.

– Daren Bakst, J.D., LL.M., is Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., is Director of the North Carolina History Project.

11 Responses to “June 2, 2010 – Federalist No. 26 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, For the Independent Journal (Hamilton) – Guest Bloggers: Daren Bakst, J.D., LL.M., Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., Director of the North Carolina History Project”

Jace Broadman says:

June 2, 2010 at 8:14 am

So much of what’s in our Constitution is a result of the experiences that our founders had had before — things that worked and things that didn’t. This practical approach to setting up rules makes a big difference. Something as straightforward as the legislature’s role in defense was improved by the trial and error of the founders. I guess this makes me wonder why so many rules and proposed laws today seem to defy this tradition. Cap and Tax and the health care takeover come to mind. Have these worked anywhere before? Why must we be the experimenters?
Susan Craig says:

June 2, 2010 at 8:53 am

I’ve always felt that reform and power are pendulums which never stops at the bottom of the swing in perfect balance. The first, as an example, unions vs. owners, in the late 19th century owners were developing fiefdoms within their spheres so to empower the labor force unions were developed. In government it is liberty vs. order. What is counter intuitive is that reasonable boundaries are necessary to fulfill the promise of the Declaration of Independence for Life, Liberty and the Pursuit of Happiness. Rules like Fences make good neighbors.
Jimmy Green says:

June 2, 2010 at 4:00 pm

As with our constitution the legislature does indeed have the power to provide for the national defense in Section 1 article 8 of the constitution. I’m not certain how the Federal Government got around the issue of “no appropriation of money to that use shall be for a longer term than two years.”
The concern is in today’s world the executive branch is more inclined to initiate war regardless of the congress. I think WWII was the last time the legislature actually declared war as constitutionally required. Today the military is essentially at the Presidents disposal to be sent wherever, whenever. Does this imply the executive branch not the legislative is actually in charge of providing for the common defense? It seems a power vacuum has played out between the two branches and the Congress has surrendered its authorizations for war. This should be troubling to everyone. Besides this issue I do agree that in theory the legislative branch should have what ever power is needed to provide for the common defense. Although I’m not certain how to determine what size of a standing army we truly need.

As Professor Kickler and Bakst pointed out “The federal government has become a behemoth with state governments beholden to it due to an over-reliance on federal funds”.
This can be seen quite acutely in what former President Eisenhower termed the military industrial complex.
Today’s attempts to kill most any major weapons system take a Herculean effort. Not because every weapons system is needed or wanted but simply because the cancellation of said system will involve the loss of thousand of jobs across many states. The congressman of those states will fight tooth and nail to maintain those jobs. And the defense contractors are clever enough to spread the development across as many states as necessary to ensure its survival. Sadly even weapon systems the pentagon does not want are built because the congressman is unwilling to allow the jobs to be lost. This is a detriment to the military and taxpayers.

The mention of Rome via the Anti Federalist papers is amusing in that it’s hard to see that occurring to our republic currently. However as with Rome the executive power increased until Caesar took control as virtual dictator effectively ending any remnants of a republic. Today as I mentioned a power vacuum has been occurring in which the executive branch is wielding more power simply by taking it from the legislative branch.. This jeopardizes the check and balances needed to maintain a healthy republic especially in times of war. Although I don’t think were close to crossing a Rubicon in America I definitely have my concerns about the average citizens role as seemingly something less then “We the people” .
Jimmy Green says:

June 2, 2010 at 4:02 pm

Sorry meant to say Article 1 section 8
Dale Morfey says:

June 2, 2010 at 4:55 pm

Congress essentially delegated to the President, via the War Powers Act, the ability to respond to an act of war quickly (which the President already had under the Constitution) and to become involved in military actions that constitute acts of war.

Congress has tried to delegate away one of their most important functions and We The People have allowed them to do so – to our shame.

Remember the old saying “An ounce of prevention, is worth a pound of cure.”…? There being a time for everything… now is the time for the pound.
James Roman says:

June 2, 2010 at 5:03 pm

James Madison Federalist papers
Military: country capable of supporting without breaking the bank.
Population 300 million

Army 1/100 population= 3 million
organized Militia 25 * Army= 75 million

Militia@Large rest of population capable of bearing arms
Barb Zakszewski says:

June 2, 2010 at 7:42 pm

Basically, every “war” since the Korean “War”, that the United States has fought in, has been Unconstitutional, in a strict sense. The President can go before Congress as FDR did in WWII, and ask for a declaration of War. But not even the Gulf wars and the current conflicts in the middle East are constitutionally declared wars, because the President has not done his Constitutional duty properly and Congress certainly has not either. No doubt, Congress has abdicated its role, in favor of politics and winning elections. Several of the wars including Korea and Vietnam have been police actions that the spineless United Nations have gotten us involved in. I would love to have seen GW Bush go before Congress after 9/11 and request a declaration of war, but against whom? The Taliban, Al-queda. Terrorists are much more elusive and undefined than a Nazi Germany or an imperalist Japan. So instead, we fought against and continue to fight these elusive terrorists, without an actual declaration of war. I don’t know what the answer is here, the United States must defend itself, but to grant SOO much power to one individual certainly cannot be what the Founders intended. We must go back to the Constitution and to the arguments made in the Federalist and see what those intentions were and try to find the answers that are already there.
Constituting America says:

June 2, 2010 at 10:30 pm

Thanks to everyone who joined our discussion today, and to our Guest Constitutional Scholar Bloggers, Daren Bakst and Troy Kickler!

I asked you all last night to help us recruit kids to enter the We The People 9.17 Contest, Entries due July 4! Thank you!! We have had several new online signups today at https://constitutingamerica.org/contestsignup.php Please keep spreading the word!!

Here is one additional request – as you recruit young people to the contest, please ask their parents, and the older kids, to join us on this blog! We learn so much from each other. The more people we have participating, the more we learn!!

Tonight, the first paragraph of Federalist #26 grabbed my attention. I even printed it off and carried it down the hall to show my husband who was trying to watch TV in peace! But as he read the sentences below, he agreed – these words ARE relevant today:

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.

I admit I had to look up a few words. I had a vague understanding of their meanings, but reading the definitions added to the richness of Hamilton’s message.

ameliorate – to make or become better, more bearable, or more satisfactory; improve; meliorate.

chimerical – 1 : existing only as the product of unchecked imagination : fantastically visionary or improbable
2 : given to fantastic schemes

Even though Publius uses this first paragraph to make his case for the legislature to have the power to provide for national defense, these words reverberate with meaning, as I think of the numerous ways the balance between “legislative power and liberty” (thank you Mr. Bakst & Kickler for that phrase) has been disrupted.

Our founders created a system of checks and balances, and nothing less than our freedom is dependent upon its equilibrium. Whether we tip too far towards anarchy, as Hamilton feared if the legislature wasn’t granted the power to provide for the national defense, or too far towards government control in our lives, the result is a deviation from the system of government our founding fathers so carefully designed. When “We the people” allow the government to get out of balance, we allow our liberty to fade, creating those “inconveniences,” Hamilton references, and we fail to make “any material change for the better.”

Good night and God Bless!

Cathy Gillespie
Constituting America says:

June 2, 2010 at 10:46 pm

“…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 anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

When I read these words of Alexander Hamilton, I think to myself, “ WHAT HAPPENED?” This is one of the absolute best paragraphs in the Federalist Papers! When one wants to know what’s the big deal about the Federalist Papers, when someone wants to know why the United States Constitution important, when someone says, “We haven’t strayed that much from the Constitution,” I would direct them to this paragraph in Federalist Paper No. 26.

These are the words that define the vision of our founding fathers, and the structure of the United States Constitution, in regard to restraining the federal government.

“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 anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.
The tenth amendment needs to be revisited and rekindled.

Have we proceeded too far to save America? Will we ever get back to the true intention of our Constitutional government? Will American’s ever cut the umbilical cord?
Are we to watch our flag burning in the street as citizens insist that the government owes them benefits? Will the age of entitlement ever be replaced by the original age of entrepreneurial vigor? Are we to sink on the same ship as Greece? Our GNP is projected to meet Greece’s GNP by 2020.

How will America survive?

If American’s do not know what they have they will not know when it is slowly being taken away from them.

As Alexander Hamilton states,“Schemes to subvert the liberties of a great community, require time to mature them to execution.”

The time has come and the alarm must sound before it is too late. What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.

The tenth amendment needs to be revisited and rekindled.

We must act now before America’s great liberties are swallowed into the great abyss of socialism and democracy fails – but this will happen only if we let it. We must be the VOICE and the ARM of discontent. The best way to do this is by education. We must educate our friends, our family, our neighbors, our CHILDREN about the United States Constitution, the Federalist Papers and our country’s founding principles.
We must be vigilant!

It begins with YOU. Spread the word about our website and “90 in 90,” and our contest for kids!

God bless you!!
God bless America.

Janine Turner
June 2, 2010
Constituting America says:

June 2, 2010 at 10:50 pm

“…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 anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

When I read these words of Alexander Hamilton, I think to myself, “ WHAT HAPPENED?” This is one of the absolute best paragraphs in the Federalist Papers! When one wants to know what’s the big deal about the Federalist Papers, when someone wants to know why the United States Constitution important, when someone says, “We haven’t strayed that much from the Constitution,” I would direct them to this paragraph in Federalist Paper No. 26.

These are the words that define the vision of our founding fathers, and the structure of the United States Constitution, in regard to restraining the federal government.

“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 anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

Have we proceeded too far to save America? Will we ever get back to the true intention of our Constitutional government? Will American’s ever cut the umbilical cord?
Are we to watch our flag burning in the street as citizens insist that the government owes them benefits? Will the age of entitlement ever be replaced by the original age of entrepreneurial vigor? Are we to sink on the same ship as Greece? Our GNP is projected to meet Greece’s GNP by 2020.

How will America survive?

If American’s do not know what they have they will not know when it is slowly being taken away from them.

As Alexander Hamilton states,“Schemes to subvert the liberties of a great community, require time to mature them to execution.”

The time has come and the alarm must sound before it is too late. What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.

The tenth amendment needs to be revisited and rekindled.

We must act now before America’s great liberties are swallowed into the great abyss of socialism and democracy fails – but this will happen only if we let it. We must be the VOICE and the ARM of discontent. The best way to do this is by education. We must educate our friends, our family, our neighbors, our CHILDREN about the United States Constitution, the Federalist Papers and our country’s founding principles.
We must be vigilant!

It begins with YOU. Spread the word about our website and “90 in 90,” and our contest for kids!

God bless you!!
God bless America.

Janine Turner
June 2, 2010
Neil Simpson says:

June 6, 2010 at 9:39 am

It helps me a great deal when I see the explanation. It seems unusual that there was such a controversy over the control of the military. But that does seem to show that our founders had a lot of foresight in that they anticipated problems and then resolved them. I guess what I don’t understand is how we’ve gotten so far away from that ability. Are modern Americans less bright or is the divine no longer influencing our nation’s path?

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 27 – Cathy Gillespie

Federalist Paper 27, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Constitutional Amendment X, Constitutional Amendment X, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 27, Federalist No. 27

Friday, June 4th, 2010

Thank you to our Guest Constitutional Scholar Blogger, Julia Shaw! And thank you to all who posted your comments today.

While reading Federalist 27, I found myself thinking, “How was Hamilton so wrong?”

He begins by arguing with one of the premises of the anti-federalists:

“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.”

Hamilton may be correct that people will be accepting of the federal government if it is well administered, but as Peter Roff so correctly points out in his coment today, it is impossible to effectively manage the behemoth the federal government has become. And while most people do not mind the exercise of federal authority in the internal matters enumerated as federal powers in the Constitution, what they do mind is the federal government’s usurpation of those powers that according to the 10th Amendment are ”reserved to the States respectively, or to the people.”

This quote startled me as well:

“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.”

Ask any small businessperson who is struggling to comply with EPA, OSHA, IRS, and numerous other sources of “red tape,” if his or her affection towards the federal government is strengthened or weakened by all the mandates, regulations, rules and laws with which he must comply.

Hamilton could not have imagined the reach the modern day federal government has into U.S. citizen’s “internal” lives. He had no way of knowing the 17th Amendment would be added to the U.S. Constitution, one of many factors that threw off the systems of checks and balances the founders had so carefully constructed to avoid a power grab by the federal government.

Hamilton got this right, however:

“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.”

Many would argue that we are moving into the “odious and contemptible” zone with the ever expanding powers of the federal government contained in some of the legislation passed in the last few years. At least 13 states would deem the health care bill “odious and contemptible,” as they mount their constitutional challenges to it.

In the comments section tonight, Adam proposed an interesting idea – a fourth branch of government entitled the Accountability Branch. I would argue that branch already exists, but it goes by another name: “We The People.” We are charged with keeping the government accountable. As Janine wrote so eloquently in her Fox News Op Ed, Your Vote is Your Voice, http://www.foxnews.com/opinion/2010/04/30/janine-turner-supreme-court-justice-constitution-elections-elected/, our power to vote is the great leveler in restoring the balance to our government.

In order to use that power wisely, We The People, of the Accountability Branch, must be educated and awake. Thank you to all of you for your participation, and for your wakefulness! Let’s keep spreading the word, and inviting others to join us!

Good night and God Bless,

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 27 – Janine Turner

Federalist Paper 27, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 27, Federalist No. 27

Thursday, June 3rd, 2010

“Man is a creature of habit. A thing that rarely strikes his senses, will have but a transient influence upon his mind.” Alexander Hamilton, Federalist Paper No. 27.

Bingo. Once again, from the minds of Publius rings relevancy today. The United States Constitution is a thing that rarely strikes the senses because it is so infrequently discussed or taught. Consequently, it has but a transient influence upon American’s minds and passions. The mainstream American culture is basically void of any mention or remembrance of the United States Constitution. Hence, our calling, as concerned American’s who value our Constitutional Republic, is to rally our Republic and curb the tide of irreverence that is engulfing the United States Constitution.

We must make it prevalent and relevant to the senses of our citizens. Knowledge is power. Culture is contagious. The United States Constitution is critical. Actually, it is in critical condition and its survival is the antigen to the disease of socialism. It embodies the vaccine that needs to be boosted in American society.

Man is a creature of habit and without the awareness of the basic structure, the true intent and the proper application of the principles of our United States Constitution then our Republic will be but a fleeting memory.

It is projected that by 2020 our economy will match the failing economy of Greece and democracy as we know it, America as we know it, will meet its demise. The spending must cease and the only way to accomplish this is to reinvigorate the can do spirit that built America. As John F Kennedy said, “My fellow Americans, ask not what your country can do for you; ask what you can do for your country.”

We must counter the culture. One way to do this is to have parties in your home to study the Constitution and encourage people to join our “90 in 90” or refer people to the essays that are in our “90 in 90” archives. Cathy and I want to build a library that will provide a richness of resources to be utilized at any time.

Another way to counter the culture is with our children, the youth of our country. The culture is sending them the wrong message and the awareness of the Constitution is either vague, repugnant or nil. I thank you for getting your child, or a child you know, to join our contest. Taking the time out of “summer time slumber” or “summer time frenzy” is the first step to requisite better habits.

Our sense of pride in our country needs to be rekindled, and the paramount awareness of our rights and our basic foundation needs to be reaffirmed, by infusing the culture the American grassroots way. If not by the culture or mainstream media, then by the sheer will of dedicated Americans, like you.

God Bless,

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 27 – The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, from the New York Packet (Hamilton)

Federalist Paper 27, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Julia Shaw 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 27, Julia Shaw

Guest Blogger: Julia Shaw, research associate and program manager at the Heritage Foundation’s B. Kenneth Simon Center for American Studies

Thursday, June 3rd, 2010

We are all familiar with the recent skepticism about government’s performance. Ever since Rick Santelli’s rant on the floor of the Chicago Board of Trade, Americans across the country have gathered in tea parties to discuss and protest the plethora of bad policies pouring forth from Washington. Frustration with government, though, is not limited to tea party participants. The recent oil spill in the Gulf Coast has renewed discussions on the left and the right about what the federal government can and should do in such emergencies.

How should we understand the recent frustration with government and skepticism about its role? Writing as Publius in Federalist27, Alexander Hamilton explains the cause of such dissatisfaction and the suggests a remedy to restore the people’s confidence in and affection for government.

In Federalist27, Publius addresses the charge that the new government “cannot operate without the aid of a military force to execute its laws,” ultimately because “people will be disinclined to the exercise of federal authority in any matter of an internal nature.” Publius counters the presumption that people will be disfavor this new government, arguing that “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.”

Publius rejects the notion that people arbitrarily despise their government. Instead, he argues that there is a relationship between effective administration of government and public affection for government. People have confidence in and affection for a well-administered government. Conversely, people distrust and become frustrated with a poorly administered government.

This is not an unfamiliar argument. President Obama acknowledged that Americans were desperate for a well-administered government. But when Obama proclaimed in his inaugural address, “the question we ask today is not whether our government is too big or too small, but whether it works,” he suggested that effective government is unrelated to the size and scope of government. Good administration is necessary for good government. But this does not mean that good administration is unrelated to the size of government.

But Federalist27 anticipates Obama’s argument. Good administration is inseparable from limited government. Publius explains, in Federalist27 and throughout the entire Federalist, that the constitutional design of the government lends itself to gaining the affection of the people. In Federalist27, Publius highlights the expanded choice in election, the selection of the senate, and the reduction of factions as examples of the changes that will engender good will toward the new government. The rest of the Federalist discusses in greater detail the powers and limits on the new government. And, it is this limited government of enumerated powers that “the citizens are accustomed to meet with it in the common occurrences of their political life, [and] the more it is familiarized to their sight and to their feelings, the further it enters into those springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community.”

Considering that people have affection for good administration, and that good administration is inseparable from a limited government, it follows that people’s current dissatisfaction with government is ultimately rooted in the government’s abandonment of constitutional limitations. Every day, entitlement programs grow, government spending increases, and Washington bureaucrats issue new regulations to control our lives. It may be a difficult task to return to limited constitutional government, but, as Publius reminds us in Federalist27, the affection of the people and the long-term health of the country depend upon the such a return.

Julia Shaw is a research associate and program manager at the Heritage Foundation’s B. Kenneth Simon Center for American Studies.

16 Responses to “June 3, 2010 – Federalist No. 27 – The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, from the New York Packet (Hamilton) – Guest Blogger: Julia Shaw, research associate and program manager at the Heritage Foundation’s B. Kenneth Simon Center for American Studies”

Susan Craig says:

June 3, 2010 at 9:44 am

Oops! “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.” I fear that in arguing for the increased power of the central government also put his finger on the problem we face today. Via gradualism and how can you argue against the good of these mandates the creatures of habit have grown used to the meddling of the nanny state.
Ron Meier says:

June 3, 2010 at 11:40 am

In the town hall of Siena, Italy, is a very large classic fresco painting of the Effects of Good Government and the Effects of Bad Government, painted in the 14th Century. Now, I wish I had spent more time looking at it than I did. You can google that to find various descriptions. As I understand, Siena, at that time, was a republic. We might all benefit by spending some time examining the painting and its various meanings to better understand where we are today and what we have to do to get back to where we started. It would be good to have a reproduction of that painting in the Congressional Rotunda.
Maggie says:

June 3, 2010 at 12:42 pm

This leapt off the page at me….”A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people.” I do not think of this as “distance” in a literal sense, but rather “distance” in their understanding of the every day man. Our politicians have made careers out of being set apart rather than being one of us and governing as one of us.
Jimmy Green says:

June 3, 2010 at 3:00 pm

Military force is not needed but honestly lets agree that many taxes and fees that are charged to us often unfairly would never be paid if their was no implicit threat of fines, incarceration ,loss of property, violence of some type by the federal or local government if you do not obey them. Sadly this coercion is being forced on us to accept unjust or unconstitutional laws.
The administrative efficiencies of the government good or bad would have little bearing on us in a constitutionally run government. The issue as mentioned is the relative size and intrusive nature of it into our personal lives.
No doubt the Federal Government was corrupt a hundred or more years ago but that corruption did not affect us much. The constitution was still in effect and the wall preventing the Federal Government from meddling in our private life was limited

Most every serious problem in America today can easily be traced back to unconstitutional decisions the Federal Government made and the judicial system approved. Is there any limit to the government’s intrusion into our private life?
Are we becoming wards of the government?. Each one of us should be furious about this. Unless you wish for a cradle to grave welfare state or maybe entered the country illegally then the Federal Government is the nightmare on Elm Street. Or from another great show “We are the Federal Government….Resistance is futile…..You will be assimilated
You life as it has been is over. From this time forward you will service us” or something cool but scary like that.

I believe our guest blogger Julia Shaw hits the nail on the head when she states “it follows that people’s current dissatisfaction with government is ultimately rooted in the government’s abandonment of constitutional limitations”. I believe this is primarily what we all tend to think and the comments I have read from you all tend to support that idea.

Maggie says: “Our politicians have made careers out of being set apart rather than being one of us and governing as one of us.”
Absolutely true, the only question of importance now is what are we willing to do to change this. What efforts or discomforts are we willing to accept for a restoration of the government and the constitution of the people.
Susan Craig says:

June 3, 2010 at 4:27 pm

Jimmy, let me pose the question to you this way. Consider you and your neighbors homes to be a microcosm picture of two countries. Let us say that is common knowledge that both of you have on your properties something of great value. You are not armed, while your neighbor is known to have at least one gun. I consider this the individual equivalent of a national standing army. Which house is more vulnerable to thieves?
Jimmy Green says:

June 3, 2010 at 4:41 pm

Okay Susan I give. Please explain your point and the relevence to essay 27.
Thanks
Jimmy
Constituting America says:

June 3, 2010 at 6:48 pm

“Man is a creature of habit. A thing that rarely strikes his senses, will have but a transient influence upon his mind.” Alexander Hamilton, Federalist Paper No. 27.

Bingo. Once again, from the minds of Publius rings relevancy today. The United States Constitution is a thing that rarely strikes the senses because it is so infrequently discussed or taught. Consequently, it has but a transient influence upon American’s minds and passions. The mainstream American culture is basically void of any mention or remembrance of the United States Constitution. Hence, our calling, as concerned American’s who value our Constitutional Republic, is to rally our Republic and curb the tide of irreverence that is engulfing the United States Constitution.

We must make it prevalent and relevant to the senses of our citizens. Knowledge is power. Culture is contagious. The United States Constitution is critical. Actually, it is in critical condition and its survival is the antigen to the disease of socialism. It embodies the vaccine that needs to be boosted in American society.

Man is a creature of habit and without the awareness of the basic structure, the true intent and the proper application of the principles of our United States Constitution then our Republic will be but a fleeting memory.

It is projected that by 2020 our economy will match the failing economy of Greece and democracy as we know it, America as we know it, will meet its demise. The spending must cease and the only way to accomplish this is to reinvigorate the can do spirit that built America. As John F Kennedy said, “My fellow Americans, ask not what your country can do for you; ask what you can do for your country.”

We must counter the culture. One way to do this is to have parties in your home to study the Constitution and encourage people to join our “90 in 90” or refer people to the essays that are in our “90 in 90” archives. Cathy and I want to build a library that will provide a richness of resources to be utilized at any time.

Another way to counter the culture is with our children, the youth of our country. The culture is sending them the wrong message and the awareness of the Constitution is either vague, repugnant or nil. I thank you for getting your child, or a child you know, to join our contest. Taking the time out of “summer time slumber” or “summer time frenzy” is the first step to requisite better habits.

Our sense of pride in our country needs to be rekindled, and the paramount awareness of our rights and our basic foundation needs to be reaffirmed, by infusing the culture the American grassroots way. If not by the culture or mainstream media, then by the sheer will of dedicated Americans, like you.

God Bless,

Janine Turner
Susan Craig says:

June 3, 2010 at 7:08 pm

Jimmy, and I quote ‘Military force is not needed’ even if it is not used it has a function.
Susan Craig says:

June 3, 2010 at 8:17 pm

In America under ‘posse comitatus’ the standing military is not permitted to act internal to the boundaries of the union. The only ‘military’ body that may be called to internal action are the individual state guard units and that only at the behest of that states governor. Under the Constitution the military is purely an extention of foreign policy whether it is declared war or the ‘big’ stick that others know we have and are not afraid to use when provoked.
Jimmy Green says:

June 3, 2010 at 8:37 pm

Susan, yes thats correct if I understand you correctly were talking about coercion. My statement of “Sadly this coercion is being forced on us to accept unjust or unconstitutional laws.”
The government always gets what it wants by the implied threat of force, rarely the actual use of it. Hopefully I understood you correctly but maybe not.
Jimmy
Richard says:

June 3, 2010 at 8:41 pm

“I hope we have once again reminded people that man is not free unless government is limited. There’s a clear cause and effect here that is as neat and predictable as a law of physics: as government expands, liberty contracts.” — Ronald Reagan
Susan Craig says:

June 3, 2010 at 8:55 pm

Okay your point was [if I understand you right] is that for government coercion to occur our government has found a way to do it without military involvement? Okay there we can agree. One of our founding fathers said [and I probably paraphrase] ‘Where government fears the people you have liberty, where the people fear the government you have tyranny!”
Peter says:

June 3, 2010 at 9:24 pm

This observation “Publius rejects the notion that people arbitrarily despise their government. Instead, he argues that there is a relationship between effective administration of government and public affection for government. People have confidence in and affection for a well-administered government. Conversely, people distrust and become frustrated with a poorly administered government.” is the central point of Federalist 27, in my judgment, and of much of the debate in which we find ourselves today. Big government is hard to administer, is arbitrary and ineffective – which is part of the reason people feel the way they do about the IRS, the Post Office, the EPA and, at the local level, the DMV. This point is certainly worht thinking about in the contemporary context.
Adam Estep says:

June 4, 2010 at 12:27 am

Enslavement:

Though it be by whip and chain or by excessive common laws and many taxes its name does not change!
Jesse Stewart says:

June 7, 2010 at 7:29 pm

I know this posting is late, but I’ve been unable to participate for a few days. I too was struck with “I believe . . . general rule that their [the people] confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration.”

The “badness” of our government over a long period of time has lead to the mistrust now felt by the people. I hope and pray that we will be able to reverse this trend, or we will be lost!
Constituting America says:

June 8, 2010 at 1:08 am

Greetings from NYC. I am here, with Cathy and Juliette, and we are Constituting America. Be sure to tune in tomorrow to Fox News midday as I am going to be a guest on Megyn Kelly’s show. I will, also, be on Glenn Beck’s Show, the Founding Father’s Friday, on Friday! Yea! Great exposure for Constituting America and our “90 in 90” and our We the People 9.17 Contest for kids. Deadline for our contest entries is July 4th – so please continue to spread the word!

I am glad to have Marc S. Lampkin back with us today, thanks Mr. Lamkin for your wonderful insights and I was also really happy to see some of our regular bloggers back today, such as Maggie and Carolyn, as well as some new bloggers…welcome!

I find that I agree with Carolyn Attaway’s blog entry today. My favorite quote from today’s reading was the following:

“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?”

As Carolyn said, our military fights for our love of country not for the love of a leader. Our military also fights for a love of his countrymen. We are brothers and sisters, neighbors and fellow citizens. Our unity through diversity is what makes us unique. Our Constitutional forefathers gave us a brilliant structure, and roadmap, to keep us that way, to keep us unencumbered by the weight of heavy-handed government. Our freedoms have given us our opportunities and identity and breathed life into our bond as a brethren working together. Our limited government has given us the ability to dream. Our sense of adventure has flourished and made America great because Americans have not been censored. Rooted in this spirit is a moral compass that has guided our way. If we loose this, we loose everything.

Alexis de Tocqueville summed it up best:

“I sought for the greatness and genius of America in her commodious harbors and her ample rivers, and it was not there; in her fertile fields and boundless prairies; and it was not there; in her rich mines and her vast commerce, and it was not there. Not until I visited the churches of America and heard her pulpits aflame with righteousness did I understand the secret of her genius and power. America is great because she is good, and if America ever ceases to be good, America will cease to be great.”

God Bless,

Janine Turner
June 7, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 28 – Cathy Gillespie

Federalist Paper 28, Federalist Paper Forum 2010 Essays by Cathy Gillespie, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 28, Federalist No. 28

Sunday, June 6th, 2010

Thank you to Dr. Morrisey for your insight into Federalist No. 28, and for checking back in with us over the weekend! You are a wonderful resource to our “90 in 90” Participants!

It is interesting to me that Hamilton seems to be calling for the federal government to use the military to enforce domestic law in some circumstances. He mentions specifically “seditions and insurrections.”

However, the American people have a strong history of opposing military enforcement of domestic law, unless requested by the state. Our forefathers rightly feared a standing army, due to abuses and usurpations of power the British Army had imposed on them.

After the Civil War, during Reconstruction, U.S. soliders were utilized to enforce law in the South. The issue came to a head during the election of 1876. Democrats dropped their challenge of this very close election (Rutherford Hayes won by one electoral college vote, but Samuel Tilden won the popular vote), when a compromise was reached to pass the Posse Comitatus Act of 1878:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Federalist No. 28, and the subsequent Posse Comitatus Act are both very relevant today, because in 2006, President Bush could not send federal troops in to Louisiana to assist in the aftermath of Hurricane Katrina, until he was specifically requested to do so by Governor Blanco. As a result, the federal government was not able to respond as quickly as many would have liked.

Later that year, an attempt was made in the 2006 Defense Authorization Act to revise the Posse Comitatus Act, to enable the President to respond more quickly in these types of emergencies. While the measure passed in 2006, it was repealed in 2008. As United States Citizens, it is “in our genes,” to be wary of standing armies, and certainly military enforcement of domestic law.

As I read Federalist 28, the below quote reminded me of why it is so important we all continue our effort to educate our youth and citizens about the U.S. Constitution and the and the foundation it sets forth regarding our freedoms and rights.

“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.”

Thank you to all of you who are joining us in our mission, speading the word and taking the time to blog with us!

Have a Blessed Sunday, and we look forward to blogging on Federalist 29 tomorrow!

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 28 – Janine Turner

Federalist Paper 28, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 28, Federalist No. 28

Saturday, June 5th, 2010

Howdy from Texas! I want to thank Mr. Will Morrisey for joining us today and for his wonderful interpretation of Federalist Paper No. 28. I underscored Alexander Hamilton’s quote, “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 usurpation of the national rulers, may be exerted with an infinitely better prospect of success, than against those of the rulers of an individual state.”

I find this to be relevant to today in the respect that so many representatives in our United States Congress are betraying their constituents and they are doing so with arrogance, and a condescension, that is disturbing. I refer once again to the often-repeated phrase of Publius, “the genius of the people.” Our current Congress is paying little heed to this phrase and their underestimation of the patriots of America, and that Americans rule through her elected officials, is an action that, I believe will hinder and surprise many currently elected officials in November.

Publius is reaffirming the collective strength of the people and their right to take action. This is a comforting reinforcement for the passions of the many Americans who are now finding their voice and utilizing it. As predicted by Alexander Hamilton, the unity of the states, the brothers and sisters of America, as opposed to individual states, are reaping resounding results.

“The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo,” is another source of wisdom from Alexander Hamilton. Relevant to today too often lawyers seem to be “usurping” our democratic process and the United States Constitution. Teams of lawyers are constantly poised and ready to redefine the process of protest by squelching it before it has begun with intimidation and coercive measures. Double speak and mind games prevail.
Americans are tiring of this game and the continual twisting of the true intentions of our Constitution and our rights.

However, in order to be a true guardian of the gate, we must carry forth our journey to be a people who protest with a basis of formidable knowledge in our principles. Knowledge is power.

Alexander Hamilton states in this paper, “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.”

“Understand their rights and are disposed to defend them.” Hence, if Americans do not know their rights then they will not know when they are being taken away.
The counter measures of our current culture are imperative. The Constitution needs to be the theme that is prevalent and prevails, as does the readiness and willingness of Americans to stand up, take a stance and go the extra mile. When we are too tired, or too busy, or too distracted by the mundane, this is when it is of the most importance to rally our wills and wits to carry on and carry forth the torch of our forefathers and foremothers who sacrificed so much and stopped at nothing to underscore and manifest what was right, what was worthy and what was the true intent of our God.

God Bless you for your willingness and courage,

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 28 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, for the Independent Journal (Hamilton)

Federalist Paper 28, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William Morrisey, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 22, Federalist No. 27, Federalist No. 28, William Morrisey PhD

Guest Blogger: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Friday, June 4th, 2010

The Federalist #28: Federalism and Rebellion

Publius has turned to the justification of “energy” or power in the federal government—in particular, the power of military self-defense. In #27 he began consideration of perhaps the most sensitive topic in any federal system, namely, military defense against internal rebellions. He argued that union finds its primary bulwark in peaceful habits of cooperation. Frequent appeals to armed enforcement of the union will only weaken the union–either by fostering resentments piqued by fresh injuries or by transforming that union into a tyranny that rules by nothing more than force. The careful limitation of federal powers—“the enumerated and legitimate objects of [the government’s] jurisdiction”—coupled with the structural device of divided and separated powers within the federal government itself, should work to strengthen the Union over time.

Nonetheless, times will come when only force can preserve the Union. Publius addresses this likelihood in Federalist #28, making this paper one of his most candid and tough-minded performances.

Recall the fundamental law of contract enunciated in #22: no party to a contract may unilaterally and legally violate the contract. This maxim of course provided the crux of the Founders’ argument in the Declaration of Independence; King and Parliament had violated the unalienable rights of the colonists by unilaterally altering the terms of their governing charters, leading ultimately to acts of war against the colonists by the King, funded by the Parliament. The revolution occurred not because the colonists rebelled but because the British government had.

At least as often, some part of the people will rebel. Indispensable to good government, rule by law will not always suffice. Rebellion causes an immediate emergency but, more importantly, it “eventually endangers all government”; rebellion in one place can spread to others, plague-like. Publius remarks that this will hold regardless of whether the country remains united, inasmuch as an America divided into one, a few, or many sovereignties will still suffer the occasional insurrection.

As a revolutionary warrior, Publius maintains the right to revolution against tyranny. The “original right of self-defense,” part of our natural right to life, always remains “paramount” to “all positive forms”—i. e., all conventional, man-made forms—“of government.” The human institution of government rightly serves God’s `institution’ of human nature, and when the human contradicts the divine, the divine rightly asserts priority. This much we know from the Declaration of Independence: In some circumstances the rule of law rightly gives way to illegal but just force.

Publius then advances a much more surprising argument, one based on prudential reasoning not logical deduction from first principles. Usurpation of citizens’ rights by “the national rulers” will find stiffer resistance than usurpation by the rulers of the member states. The lesser governments within the states—townships, counties—have relatively weak governments and so would likely lose any contest of arms to a state-capital cabal, especially if the state government controlled the militia. A usurpatory federal government, however, would face opposition by the states—by experienced public officials with every motive to remain alert to encroachments on their constitutional rights. The federal government under the new Constitution will check usurpatory moves by the states; the states will retain the power to check federal usurpation. “The people, by throwing themselves into either scale, will infallibly make it preponderate.” By ratifying this Constitution the people will do just that, peacefully, but they could also do so in war, if they judge it necessary—as they had, in 1776.

Here the argument of Federalist #10 for the value of an extensive republic reappears. There, extensiveness of territory diluted factions: groups of citizens acting some way “adverse to the rights of other citizens”—individuals—or to the “permanent and aggregate rights of the community”—the society as a whole. Here we see the reverse situation; a group of citizens acting in defense of their rights, in accordance with the permanent and aggregate rights of the community, will find refuge in the size of America. States distant from the usurpers who’ve seized the capital city would have time and space in which to organize themselves military and fight back.

This raises an obvious question: What if an unjust group or faction controlled distant states? Could the federal government suppress the rebellion? Publius cannot predict the outcome of such a struggle. If asked, he could only say that under the weak government of the Articles, no such just suppression could occur at all.

Professor Will Morrisey is the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

13 Responses to “June 4th, 2010 – Federalist No. 28 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, for the Independent Journal (Hamilton) – Guest Blogger: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”

Susan Craig says:

June 4, 2010 at 7:29 am

This paper seems by implication to say that the 2nd amendment was an understood given if not a directly stated right of the people. I wonder why in this contract in its unamended form only specified the obligations and duties of one side but only implied those of the other side?
Will Morrisey says:

June 4, 2010 at 10:50 am

Susan, if I understand your question correctly, I think that the Founders agreed that the right to self-defense was a natural right, thus `given’ by God. One of the early commentators on the U. S. Constitution, St. George Tucker, writes, “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.” Under the Articles, this right simply could not be infringed by the national government. The Framers of the new Constitution were trying to strengthen that government, so they emphasized the need for a government capable of defending itself against rebellion. By 1789, when Congress debated the Second Amendment, the opposite worry prevailed. Worried about the prospect of a standing army, the Congress thought that militias regulated by the civil governments of each state would obviate the need for such a force. They hoped that militias would suffice to repel any invasion. We see this as late as 1829 in William Rawle’s book, “A View of the Constitution of the United States.” He argues, “Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government.” A few years later, Joseph Story adds, to these points the need of the citizens to defend themselves against “domestic usurpations by rulers.” Notice that these commentators expect that any “regular” army would need to be “raised”; there would be no regular standing army.

Or am I missing the point of your question?
Billie says:

June 4, 2010 at 1:20 pm

This explains a lot. I sometimes have wondered about the rationale about the dispute over the standing military force. On the one hand, I believe in a strong national defense. But I’ve thought about the fact that the same force could ultimately be turned against the nation. I don’t really fear it per se, but it is sort of a quandary as to what to do about it. But Professor Morrisey explains it quite well.
Jimmy Green says:

June 4, 2010 at 2:24 pm

Hamilton’s understanding of times when the national government will use force to quell insurrections or other internal calamities is understandable given the times he lived in. I think the last time federal force was used was the war between the states from 1861-1865. Not sure if that’s a civil war or the south loosing their own revolutionary war.
The civil rights movements of the 1960’s used federal troops in Little Rock I think, but that was not out of sedition or succession concerns.

Hamilton’s views on the necessity of force to preserve the union seems common sense. It’s the couple of centuries of hindsight we have that keeps getting in the way.
His view of stopping an usurpation in a state as harder then a federal usurpation because of limited territory or geographical areas seems secondary to the usurpers partial or complete control of the militias and belief of the citizens in the usurpers. You know the old “divide and conquer” routine. An usurpation of power by the Federal government likewise seems to be more based on convincing the people that no real usurpation has taken place and then placating them with cheap beer and all the gladiatorial games in the form of ESPN you can watch. At least for the men. Otherwisw entitlements and free medical care for all.

It think he believes that if the states invade our rights through an usurpation of power then the strength of the Federal Government will set things right and of course the States will set the Federal Government proper if their invading our rights. We decide which one is right or wrong. You have to love how this works in theory.
The last paragraph mentions peoples apprehension of a strong standing federal army as suffering from a cureless disease. Nice to know political humor transcends the ages.

You have to appreciate the fine line Hamilton is walking to find the correct balance between having the proper sized standing national army to safeguard the Union and the people of any rogue despotic state. Yet weak enough such that the states and people can throw off the tyranny of that army under a despotic federal government. In actuality we have had no real fear from our standing army and I think Hamilton was right, at least for now. However as people loose confidence in the government things may start to change.
Susan Craig says:

June 4, 2010 at 2:46 pm

Partially professor, in most contracts, and I consider the Constitution a contract between government and the people, the rights, privileges and duties of both parties are spelled out up front in the body of the contract. In the Constitution what is expected and permitted on Governments part is very narrowly proscribed but it wasn’t until the first 10 amendments that the other side of this contract was address with any specificity.
Constituting America says:

June 5, 2010 at 1:26 am

Howdy from Texas! I want to thank Mr. Will Morrisey for joining us today and for his wonderful interpretation of Federalist Paper No. 28. I underscored Alexander Hamilton’s quote, “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 usurpation of the national rulers, may be exerted with an infinitely better prospect of success, than against those of the rulers of an individual state.”

I find this to be relevant to today in the respect that so many representatives in our United States Congress are betraying their constituents and they are doing so with arrogance, and a condescension, that is disturbing. I refer once again to the often-repeated phrase of Publius, “the genius of the people.” Our current Congress is paying little heed to this phrase and their underestimation of the patriots of America, and that Americans rule through her elected officials, is an action that, I believe will hinder and surprise many currently elected officials in November.

Publius is reaffirming the collective strength of the people and their right to take action. This is a comforting reinforcement for the passions of the many Americans who are now finding their voice and utilizing it. As predicted by Alexander Hamilton, the unity of the states, the brothers and sisters of America, as opposed to individual states, are reaping resounding results.

“The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo,” is another source of wisdom from Alexander Hamilton. Relevant to today too often lawyers seem to be “usurping” our democratic process and the United States Constitution. Teams of lawyers are constantly poised and ready to redefine the process of protest by squelching it before it has begun with intimidation and coercive measures. Double speak and mind games prevail.
Americans are tiring of this game and the continual twisting of the true intentions of our Constitution and our rights.

However, in order to be a true guardian of the gate, we must carry forth our journey to be a people who protest with a basis of formidable knowledge in our principles. Knowledge is power.

Alexander Hamilton states in this paper, “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.”

“Understand their rights and are disposed to defend them.” Hence, if Americans do not know their rights then they will not know when they are being taken away.
The counter measures of our current culture are imperative. The Constitution needs to be the theme that is prevalent and prevails, as does the readiness and willingness of Americans to stand up, take a stance and go the extra mile. When we are too tired, or too busy, or too distracted by the mundane, this is when it is of the most importance to rally our wills and wits to carry on and carry forth the torch of our forefathers and foremothers who sacrificed so much and stopped at nothing to underscore and manifest what was right, what was worthy and what was the true intent of our God.

God Bless you for your willingness and courage,

Janine Turner
June 4, 2010
yguy says:

June 5, 2010 at 2:20 pm

“in most contracts, and I consider the Constitution a contract between government and the people, the rights, privileges and duties of both parties are spelled out up front in the body of the contract. In the Constitution what is expected and permitted on Governments part is very narrowly proscribed but it wasn’t until the first 10 amendments that the other side of this contract was address with any specificity.”

I don’t think this is the right way to look at the BoR, the preamble to which describes it as a collection of “further declaratory and restrictive clauses”; and certainly any obligations conferred by those amendments fall entirely on government entities. The contractual obligations of the people WRT the government are fulfilled in their entirety when We the People provide the government with the wherewithal to carry out our orders.
Will Morrisey says:

June 5, 2010 at 8:07 pm

Susan and yguy raise an interesting question regarding modern `social contract’ theory. Prior to any contract between the people and the government must be a contract among the people themselves. This idea may be seen in the Preamble: “We the People of the United States… do ordain and establish this Constitution….” A given population in effect contracts with itself–individuals and families contract with one another–to establish the several levels of legal institutions by which they govern themselves. In so doing, they empower and limit these various governments, in each case (to quote another document familiar to all of us here) “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” If we think of the question in this way, the amendments amount to refinements of–and later on, perhaps, near-contradictions of–the original contract. The difference in emphasis that Susan points to in the first ten amendments strikes me as part of an attrempt by the Jeffersonians (many of them former anti-federalists) to ensure that certain natural rights (freedom of religion and of speech, self-defense, etc.) were given the formal or “positive” status of civil rights.
Susan Craig says:

June 5, 2010 at 11:21 pm

Thank you Professor Morrisey, you have given me food for thought.
Greg Zorbach says:

June 6, 2010 at 10:42 am

Many contributors to this blog have marveled at the wisdom of Publius and the Founding Fathers in crafting and implementing our Constitution with all of its carefully devised checks and balances and protections for our individual liberties. It has come up more than once (especially in Janine’s comments) about how amazing it is that so many of the arguments for limited government and those protections of our freedom make it seem as if Publius was looking well into the future to our troubled times.
In these last few papers, Publius addressed the widespread fear of a standing army at the time of the formation of the Constitution. Hamilton argued that the states would be a effective counter to federal overreach in this and other areas of potential intrusion into our liberty. As Jimmy points out: “You have to love how this works in theory.” The argument has proved to be unnecessary on the issue of a standing army and sadly not true in most other areas of individual liberty. The states have failed miserably in that duty to counter the federal government’s relentless intrusions into individual freedom.
As Cathy points out: “Our forefathers rightly feared a standing army, due to abuses and usurpations of power the British Army had imposed on them.” On the other hand, the standing army fears in America have been proven to be completely ungrounded.
During each of my several visits to the Vietnam Memorial I became more and more convinced that the real long-term value of that ‘conflict’ was the validation of civilian control of the military and the irrationality of those ancient fears of a standing army (‘cureless disease’ indeed). In our country’s long history of military engagements I don’t believe that there has ever been a situation that came closer to justifying a military ‘coup’ or something similar. The disastrous meddling in military missions and even sorties by Johnson and McNamara was nothing short of treasonous by the metric of the number of lives needlessly lost, both among our personnel and the Vietnamese, not to mention the stain our country still carries of that defeat . The details are easy enough to verify. I don’t know for sure (I was just a junior Navy pilot) but I would bet the farm that among the more principled senior officers I got to know and admire in my subsequent career there were many who would lay awake at night agonizing over the tragic choices and the possibilities.
It didn’t happen. Not even under those most trying of circumstances. There is nothing to fear from our standing army or armed services. Never has been.
Several very good points have been made about historical uses of federal troops: Alabama and the Civil War. (I’m married to a southerner, so I know the ‘war of southern independence’ arguments.) However, the southern states did participate in the rebellion against England. And they did enter into a legal and binding contract of confederation and then did vote for ratification of the Constitution. I always felt that calling the Civil War the ‘war of southern independence’ was just a clever way of avoiding the real moral issue at stake.
As for any theoretical rebellion, the problem arises of how do you define terms like tyranny and despotism? Maybe its like pornography: “I can’t define it, but I know it when I see it.” Many people seem to be seeing it these days.
As to the states’ abdication of their role as protectors of its citizens from an overreaching federal government, we may be seeing a turnaround with this legal opposition to Obamacare. To date, more that 20 states’ Attorney Generals have joined in the lawsuit challenging its constitutionality. Several more states (whose constitutions require that such a challenge to federal law originate in the state legislature) have began the process to join in. Those numbers get pretty close to the 38 required to call for a constitutional convention.
yguy says:

June 6, 2010 at 1:03 pm

‘The difference in emphasis that Susan points to in the first ten amendments strikes me as part of an attrempt by the Jeffersonians (many of them former anti-federalists) to ensure that certain natural rights (freedom of religion and of speech, self-defense, etc.) were given the formal or “positive” status of civil rights.’

I don’t think I could disagree more adamantly. WRT federal powers, 1A and 2A can reasonably be considered extensions of A1S9, which includes limitations on the federal legislative power under the necessary and proper clause. The preexisting rights are alluded to in those amendments to clarify the limits on government, not to place such rights on a par with “positive rights” like suffrage which require governmental validation.

IOW, while the federal government is generally tasked with protecting the rights you mention, it is not under the color of 1A or 2A that this is accomplished, but by obedience to the Constitution in general in pursuance of the objectives stated in the Preamble.
Susan Craig says:

June 6, 2010 at 7:20 pm

I have a tendency to wince when people talk of civil rights as opposed to ‘natural’ or God given rights. A Civil right is not immutable and can be changed at the pleasure of the governing power, whereas a ‘natural’ or God given right is and can not be rescinded or amended by a governing power.
Roger Jett says:

June 7, 2010 at 12:18 am

The following quotes come from a transcription of an old “Break Point” radio broadcast by Chuck Colson entitled “Rights Talk”:
“Where once we had spoken of government aid programs, we began speaking of entitle-
ment progams. Suddenly, it wasn’t just an act of compassion to help the poor, the sick, or the elderly. It was a right to which they were entitled. rights came to mean basisc needs, which in turn gave way to wishes” …”every right I claim imposes an obligation on someone else. If patients have a right to medical treatment, then doctors have an obligation to administer it. If criminals have a right to a lawyer, then the state has an obligation to supply one. If people have a right to financial security, then the government has an obligation to dole out welfare benefits. For each new right that is created, a whole network of laws and regulations is written to enforce the corresponding obligation” …”Notice the irony here. The old concept of rights was designed to limit state power- to define areas free from govern-
ment interference. But the new concept of rights expands state power” …”A larger and larger portion of our lives is vulnerable to government control- exactly what the old kind of rights were designed to prevent”… ” What a sad irony: As Americans demand more and more rights, we enjoy fewer and fewer freedoms” … “The entitlement mentality is threatening the fundamental freedoms that were once the whole point of human rights”.
We in America have become far too preoccupied with our “rights” and have lost sight of our responsibilities that preserve our “freedoms”

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 29 – Janine Turner

Federalist Paper 29, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 29, Federalist No. 29

Tuesday, June 8th, 2010

Greetings from NYC. I am here, with Cathy and Juliette, and we are Constituting America. Be sure to tune in tomorrow to Fox News midday as I am going to be a guest on Megyn Kelly’s show. I will, also, be on Glenn Beck’s Show, the Founding Father’s Friday, on Friday! Yea! Great exposure for Constituting America and our “90 in 90” and our We the People 9.17 Contest for kids. Deadline for our contest entries is July 4th – so please continue to spread the word!

I am glad to have Marc S. Lampkin back with us today, thanks Mr. Lamkin for your wonderful insights and I was also really happy to see some of our regular bloggers back today, such as Maggie and Carolyn, as well as some new bloggers…welcome!

I find that I agree with Carolyn Attaway’s blog entry today. My favorite quote from today’s reading was the following:

“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?”

As Carolyn said, our military fights for our love of country not for the love of a leader. Our military also fights for a love of his countrymen. We are brothers and sisters, neighbors and fellow citizens. Our unity through diversity is what makes us unique. Our Constitutional forefathers gave us a brilliant structure, and roadmap, to keep us that way, to keep us unencumbered by the weight of heavy-handed government. Our freedoms have given us our opportunities and identity and breathed life into our bond as a brethren working together. Our limited government has given us the ability to dream. Our sense of adventure has flourished and made America great because Americans have not been censored. Rooted in this spirit is a moral compass that has guided our way. If we loose this, we loose everything.

Alexis de Tocqueville summed it up best:

“I sought for the greatness and genius of America in her commodious harbors and her ample rivers, and it was not there; in her fertile fields and boundless prairies; and it was not there; in her rich mines and her vast commerce, and it was not there. Not until I visited the churches of America and heard her pulpits aflame with righteousness did I understand the secret of her genius and power. America is great because she is good, and if America ever ceases to be good, America will cease to be great.”

God Bless,

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 29 – Concerning the Militia, From the Daily Advertiser (Hamilton)

Federalist Paper 29, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Marc S. Lampkin 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 29, Marc S. Lampkin

Guest Blogger: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School

Monday, June 7th, 2010

Federalist #29 written by Hamilton continues the focus on the subject of the militia and the standing army. Hamilton is quite enthusiastic in embracing the needs for a common or national military force. He explains, “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.”

In Hamilton’s view, the efficiencies of having one national force as opposed to 13 were significant enough even to overcome the fear that this national force might oppress the people. Since domestic rebellions in a given state were of interest to the national government (as part of its responsibilities for national defense) as well as to the particular state where the rebellion occurred, it wouldn’t be necessary for a state to expend the resources necessary to handle such a capability and the national force would provide a sufficient capacity to handle such problems.

Arguably, Hamilton claims there could even be advantages that a national force might have over a state force in such a situation. He says, “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.”

In Federalist #29, Hamilton wants to respond to those who say that the new Constitution would be far better if somehow the national defense power remained diffused between the several states. Hamilton believes this would be in the long term destructive to the new American nation. Moreover, remarkably he turns the argument on itself. If a standing army is a threat to liberty he asks, why have thirteen standing threats? Hamilton asserts, “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.”

A second point that Hamilton makes is that sometimes the type of federal or national response needed may not include the need for lethal force. Because the federal government might have various alternatives to pick from it may not see the need to respond first with a purely military show of force. A federal government may have a variety of administrative forms that it can use to respond to a given situation, varieties that a state government might not have or if it does to have it across multiple states would be unnecessarily duplicative and therefore inefficient.

Next Hamilton directly addresses Posse Comitatus – also sometimes referred to as sheriff’s posse – originally part of the English common law it involves the authority of a law enforcement officer to obtain assistance from non law enforcement personnel to assist him in keeping the peace or to pursue and arrest a felon. Hamilton insists that critics can’t have it both ways. They cannot say that the federal Constitution should be opposed because it does not explicitly provide for this authority or be opposed because its power to engage in posse comitatus is unlimited. Hamilton argues, 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.”

Then Hamilton turns to the question of the threats associated with the national militia. Repeating arguments he has made earlier, Hamilton expands upon the concept that not only would 13 armies be unnecessarily duplicative, but it also would be financially and personally burdensome on the people as the force necessary by the aggregation of the states armies across the several states would be greater than the total force used by the national level and even this wouldn’t succeed because the burden would ultimately be rejected by the people. Hamilton explains, “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.”

Finally, Hamilton asks whether the critics who worry about the national militia are being serious. After all the national army is not made up of people from a foreign land, he says. “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?”

In addition, how could the federal government agree to unfairly subdue a state when not only the state is represented in the federal government, but all of the other states through their representatives would need to consent to such an action. “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?”

In Hamilton’s considered view opposing the new constitution over the issue of a militia at the federal level is a red herring. The benefits of having national concentrated authority far outweigh any perceived gains of dispersing this authority over multiple states.

Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC is a graduate of Boston College Law School

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 30 – Janine Turner

Federalist Paper 30, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 30, Federalist No. 30

Tuesday, June 8th, 2010

Howdy from NYC! Today Cathy, Juliette and I had a very successful day promoting Constituting America! It is such a joy to promote the United States Constitution and the brilliant Federalist Papers. We were on Glenn Beck’s radio show this morning and then on Megyn Kelly’s show on Fox News this afternoon. Check out the links on our Facebook sites to view and they will be up on our site shortly.

How lucky we are to be able to study these great works together and I thank Janice R. Brenman for her wonderful insights today on Federalist Paper No. 30! I am also thrilled that we have many new bloggers today. Join us today and visit our archives if you desire to reflect upon our essays from the past 35 days.

There were, once again, many powerful and relevant points made in Federalist Paper No. 30 by Alexander Hamilton.

“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.”

The relevancy for America, and Americans, today is obviously our tremendous debt. We have built a huge conglomerate of necessities that are certainly not equal to our resources. This statement serves as a warning to us.

We have accumulated so much debt that our liberty cannot be sustained.

Another quote from Alexander Hamilton echoes our current dilemma.

“But who would lend to a government, that prefaced its overtures for borrowing by an act that demonstrated that no reliance could be placed on the steadiness of its measures for paying.”

What happens when we are so in debt that we cannot repay our lenders, such as China? What happens when we cannot pay our bills or even borrow money because we have “demonstrated that no reliance could be placed on the steadiness of its measures for paying.”

It is easy to spend other people’s money. This is what many of our Congressman and Representatives are doing. They are spending our money with absolutely no regard as to how it will be repaid – long after they are out of office. Our massive expenditures and social programs have no financial foundation.

May Alexander Hamilton’s dream not vanish, the “..hope to see the halcyon scenes of the poetic or fabulous age realized in America..”

God Bless,

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 30 – Concerning the General Power of Taxation, From the New York Packet

Federalist Paper 30, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Janice R. Brenman 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 30, Janice R. Brenman, The Articles of Confederation

Guest Blogger: Attorney Janice R. Brenman

Tuesday, June 8th, 2010

Alexander Hamilton is widely known as the first Secretary of the Treasury, and one of the strongest advocates of our Constitution. Born illegitimately in the Caribbean to a Scottish merchant father and a mother of French Huguenot descent, he was already managing the affairs of an accounting office by age 15. After penning an essay in French detailing the devastation from a local hurricane, Hamilton was offered educational opportunities in the new, promising American colonies. He volunteered with a local militia, and became an aide to General Washington during the Revolutionary War. Afterward, Hamilton began an expansive career as a lawyer and political activist. One of his most enduring achievements was authoring many of The Federalist Papers (originally known as, The Federalist), a series of manifestos advocating the ratification of the United States Constitution.

To maintain anonymity, Hamilton, along with co-authors James Madison and John Jay, used the pseudonym “Publius” (after famed Roman Empire consul) to publish articles in three prominent New York newspapers, and later in bound volumes. These articles reflect Hamilton’s enthusiasm for the new American country and his sharp mental abilities. His death, via a duel with political rival Aaron Burr, was the final touch on a life filled with vigorous advocacy in the public policy arena with a special focus on promoting a strong national government for the United States.

Federalist Paper #30, “Concerning the General Power of Taxation.” is perhaps Hamilton at his finest. Hamilton begins by explaining that the National Treasury exists to subsidize a wide range of legitimate pursuits of the federal government. The Articles of Confederation gave Congress responsibility for managing needs of the confederacy, yet did not provide the means to do so.

Herein lies the function of taxation – a system by which all citizens have a stake in balancing benefits and costs afforded by a federal government positioned to furnish a functioning army, paying government employees, repaying current and future national debts, and other appropriate expenses. He posited that a government cannot function absent some taxes, and its power to collect taxes among the populace is necessary. Without taxes, the people would be plundered as a substitute for legitimate taxation, or, the government would eventually perish.

Hamilton delves into what many of his contemporaries saw as a substantive controversy: internal and external taxation by the new federal government. Hamilton explains the difference between an external tax and an internal tax, and then describes how the federal government should be responsible for both. An external tax is a custom duty levied against any item coming into a colony to raise revenue – for example, a piece of machinery made in England. The duty is paid by the shipper and passed on to the consumer, in the form of a higher price for that machinery. An internal tax is unrelated to imports or exports. The Stamp Tax in England set an example – an excise tax imposed on stamped paper for legal documents (including licenses and permits), bills of lading, pamphlets and newspapers. Therefore, the price of a newspaper included the cost of the stamp placed on the paper as the tax.

Critics of the new Constitution charged that internal taxation should be used exclusively by the State governments and external taxation reserved for the federal government. Hamilton noted this ideal to be “romantic poetry” and that external taxes alone, on items such as commercial imports, cannot provide enough revenue for a government as extensive as the one proposed, especially in times of war. Disallowing the federal government from internal taxation violates the maxim of good sense and sound policy he argues. Essentially, critics claim internal taxation should be the sole authority of local government, and trade revenues should go to the federal government. This policy, however, not only subordinates the federal government, but also forces it to rely on states for security and prosperity of the nation as a whole. Eventually, the Union would weaken and create conflict between the federal and state government, and perhaps even between the states themselves.

This conflict becomes even more evident during wartime. The United States was in its infancy, thus capital reserves minimal. The federal government could not depend on State requisitions alone – a loan would be needed for even the wealthiest of nations since no government would extend credit to the United States absent a reliable method of debt repayment. Dependence on the states, which might not prove reliable, would force the federal government to seek loans in the private markets essentially subsidizing loan sharks that would charge the new government high interest rates. For any other national emergency, some might fear funds allocated via taxation would be diverted, even if the national government has the unrestrained power of taxation.

However, two considerations will quiet these fears: (1) during a crisis the full resources of the community will be used for the benefit of the Union; and, (2) deficiencies can be supplied by loans. Thus, Hamilton argues for a federal internal tax as well as an external federal tax.

Special thanks should be given to a myriad of sources (including Mary E. Webster) with regard to translating the complex lexicon of Chancery Standard used in the Papers into modern English.

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, 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.

22 Responses to “June 8, 2010 – Federalist No. 30 – Concerning the General Power of Taxation, From the New York Packet – Guest Blogger: Attorney Janice R. Brenman”

Dave says:

June 8, 2010 at 9:59 am

“Revenue . . . must be had at all events.”—Hamilton No.12

“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.”—Hamilton No. 30

Okay, okay, I get it—the general government needs a dependable and sufficient supply of money. The questions remain: For what purpose and from whom? And most importantly, how is the federal government going to be restrained from taking too much from the citizens?

According to Hamilton, the proper check on government taxing is the limit of the “resources of the community.” That’s great if you get to spend other people’s money by becoming the first Treasury Secretary under the new Constitution. It’s not so great in the early years of the 21st century given that, in the last 80 years or so, the federal government has increased its share of the GDP by about 25 times.

I wish I could go back in time and knock some sense into the good Colonel. With the benefit of hindsight and that oracle of wisdom, experience, we all know that the federal government has an insatiable appetite for citizens’ hard-earned dollars—it never has stopped, and it never will stop, at simply taking money for only those necessary, enumerated objects. One need only review a random sampling of the earmarks (bribes) in any recent legislative monstrosity to discover the government will redistribute our money for just about any project here at home or even abroad.

What’s happening to various countries in the EU should be a cautionary tale for Americans. The problem countries got in their current situation by the same big-government formula our current administration seems to be adopting: Tax and spend, tax and spend, borrow and spend, borrow and spend . . . . The end is not good—worthless dollars in Americans’ pockets and shared misery for all but the various elite groups. And every aspect of the everyday life of Americans (and now with ObamaCare, the manner and time of our deaths also) will be under government control.

LIMITED GOVERNMENT IS THE ANSWER. “PUBLIC WELFARE,” “SOCIAL JUSTICE,” “ECONOMIC JUSTICE” ARE THE DISTRACTIONS.

George Will has a good piece on the Limitless Welfare State:

http://www.jewishworldreview.com/cols/will060310.php3
Susan Craig says:

June 8, 2010 at 10:14 am

Granted that taxes are a necessary evil where it went off the rails is that we allowed the situation where people were able to vote themselves other peoples money.
Nickie Summers says:

June 8, 2010 at 11:41 am

So much to wrap the brain around!! Again, as I read each paper the clarity of how far this country has moved from the outlining principles over the years is amazing…and I thought most of our politicians were contitutional lawyers/professors! The intended use of taxation has been mutated, leaders manipulate the English language to justify their encroachment into the private sector and individuals.

BUT…I read ahead Federalist 31 this morning and without spilling the beans, there is a fabulous point made. One that we’ve all heard before and one that is in full action mode across the country!!
Kurt says:

June 8, 2010 at 11:57 am

Dave,

I think your argument just underscores how we as citizens need to stay involved and monitor our government. When they get out of hand, kick them out of office. I think many of the founding fathers views where predicated on the idea that the citizenry would cherish their freedoms/rights and would jealously protect them. My reading of their writings show quite a distrust of government. We were expected to constantly question and limit what it does, we are the ones to decide the limit of the resources of the community not government. Do you allow the employee to decide his own pay or do you set it?

I imagine they would be shocked, dumbfounded and maybe even disgusted at the state of the citizenry’s protection of its rights today – just give us some government cheese and we’ll go back to sleep.
W. B. Neate says:

June 8, 2010 at 12:32 pm

Ms. Brenman in the first sentence of paragraph #4, “Herein lies the function of taxation – a system by which all citizens have a stake in balancing benefits and costs afforded by a federal government …..,” highlights what has been lost in our system of taxation. No longer do “all citizens have a stake.” Not only do nearly 1/2 of our citizens pay no federal income tax, but a large and growing portion of this group are recipients of government/taxpayer subsidies. Most sadly these subsidies, along with much of our government spending, come from borrowed funds. I am fearful that this may become a voting block too large to overcome.

Our system of taxation has morphed from a means of “balancing benefits and costs of government” to a means of social/economic engineering. In large measure the left uses the system to pander to the masses and the right uses it to curry favor with big business. Regrettably I can’t remember who said it but early in the last century it was said that Democracy will fail when the elected realize they can bribe the electorate with their own money. Well, I think they long ago figured it out.

Survival of life in America as we have known it requires our returning to our founding roots of truly limited government and a method of taxation less susceptible to misuse. Surely the time has come for a Flat or Fair tax. If only we could elect statesmen, rather than politicians, to step up to the plate, make the tough, unpopular decisions and lead with boldness.
Ron Meier says:

June 8, 2010 at 1:47 pm

“How can it undertake or execute any liberal or enlarged plans of public good?” This is the essence of the problem today – a definitional problem. The left argues that the “public good” is far more expansive than the right believes it to be. Until we come to grips with and fully understand just how wide and deep the “public good” should be allowed to be, we will not get off the track we’ve been on since FDR’s time. We are arguing this today, but we have not yet reached the crisis stage. History demonstrates that problems are not really addressed until the crisis bubble is pricked by some outside third party (e.g., China refusing to buy more of our bonds). Our legislators are like real estate bankers who will continue to loan money as long as it’s available long after their rational brain tells them that the ending will be ugly. We now know the ending will be ugly, but it’s business as usual in Washington, DC.
Michael says:

June 8, 2010 at 2:20 pm

There is wide space to debate what is important to national security. To the extreme, we’ve seen national interest used to justify globalism, i.e., all nations must be intricately woven economically to prevent wars, save the environment, distribute resources most efficiently, etc. The debate has gradually pushed us to where we now finance the defense of other nations, fund wars to defend/install democratic societies, bailout state governments and private enterprises, and so on. There is now a huge federal bureaucracy engaged in nothing more than enforcing and collecting the federal income tax. As many early Americans feared, the power of taxation has helped to create the monster that now paradoxically dictates how we live and pursue happiness (and if we should live) under the guise of protecting us. The monster is now attacking wealth-makers and producers and will see its money supply drastically diminished as a result. This seems to be purposeful and intended to destroy our great nation.
Carolyn Attaway says:

June 8, 2010 at 4:12 pm

The words Hamilton wrote to promote the need for a general power of taxation were meant to reassure the citizens of his time of a responsible government. However, when read today, during a time of high national debt and undisciplined spending, these words tend to leave a sour taste in my mouth.

Two statements in particular sent an aversion through me as we tackle present day events, and rereading Hamilton’s words, I wonder if the Founders even envisioned such abuse to our tax system.

Hamilton writes “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?”

This first statement tends to have been twisted over time to such a degree that today a large number of citizens feel that it is the government’s job to ensure their needs are met and their pursuits are guaranteed. Many people today do not even make the connection between their taxes and what the government can spend. I believe it was a mistake to begin the practice of taking owed taxes out of paychecks. Americans should all have to pay their taxes at the end of the year by writing a check to the government. I think that would be a major wake up call.

The second statement is “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.”

Again, I find this logic to have grown out of hand and explode our national debt to a point where recent polls show the same number of citizens that worry about our national debt equals that of those who worry about our national security. Whereas Hamilton was concerned about our national security, and the need to have funds to supply a defense against invasion; today Congress has taxed companies and citizens to such a high degree that is has become a national security problem.

@ W.B. Neate – It was alarming to read the statistics earlier this year that the number of those receiving government entitlements was larger than those paying taxes. And to top it off, over the past 1 ½ years the number in government jobs grew at a larger pace than private sector jobs.

There is a great article in the National Review today by Senator DeMint entitled “Constitution of No”. It is a great read! I highly recommend it.
Mary says:

June 8, 2010 at 4:43 pm

I understand what Hamilton is saying, and totally agree that the federal government has need of the right for taxation in order to fund the defense and other things that are for “the benefit of the Union.” However, it is everything in that latter category that muddies the waters. “For the benefit of the Union” is totally subjective and takes us into the chaos that we are experiencing now. According to one side, the benefit of the Union is served if the government levies taxes and then spends tax money to feed and house people with low-paying jobs. The other side argues that the good of the Union is served by using that tax money to give credits to companies who can then create jobs for those same people. The elephant in the room is that neither option is the job of the government and has nothing to do with the benefit of the Union as a whole. It only directly benefits certain members of the Union with the hope that it will somehow benefit all. In other words, the tax money is neither needed nor used correctly.

I had to laugh at Hamilton’s rhetorical question: “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?” Can we say, “CHINA!!?” We have demonstrated all of the above and still the money comes flowing in as we spend, spend, spend.

Finally, Hamilton states: “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 (addressed above); the other is, that whatever deficiencies there may be, can without difficulty be supplied by loans.” The ease of borrowing ALWAYS gets individuals, corporations and countries in trouble. If borrowing is difficult, spending is kept down. To me, Hamilton’s argument lacks the establishment of any kind of boundaries on either taxation or procurement of loans. If there is no boundary on the latter, then there can be no boundary on the former.

It is rather ironic that this man, so supportive of a strong federal government that could borrow money whenever deemed necessary, had to resign from his position as Secretary of the Treasury because of financial problems of his own. According to World Book, it is because of his views that totally clashed with those of Jefferson and Madison, that the definition of two separate political parties formed and Hamilton led the Federalist Party that favored big government. He was the original liberal progressive!!
Barb Zakszewski says:

June 8, 2010 at 7:28 pm

It is very obvious from this next section of the Federalist, dealing with taxation, how much Hamilton supported a very strong Federal government and how much he distrusts the States. He seems to dismiss the arguments from the “anti-federalists” that the Federal government, with almost unrestrained powers of taxation, could become abusive of its citizens…Fast forward 230 years, huh? Still, I do believe he had the best interests of the country at heart, and could not possibly foresee what would happen today…with the confiscatory nature of taxes both at the Federal, state and local levels. I’m not sure if he just did not want to believe that something like that could happen, of if he was just too naive in this particular matter. There was a post from earlier today where the person asked, how is the Federal government going to be restrained from taking too much from its citizens…I did not see an answer in the Federalist up to this point, and I believe we have already crossed that point, witness the TEA parties of today.
Federalist No. 30 – Concerning the General Power of Taxation, From the New York Packet « Janice Brenman says:

June 8, 2010 at 8:39 pm

[…] of Chancery Standard used in the Papers into modern English. Click here to access the post Constituting America Bookmark […]
Ray Decker says:

June 9, 2010 at 11:37 am

Until we repeal the 16th and 17th amendments and the Federal Reserve Act (which isn’t Federal and has no reserves) and abolish the Internal Revenue Service we will never get control back from the Federal leviathon. The income tax is what gives the Federal Government its massive power.
Kimi Lipsitz says:

June 10, 2010 at 2:34 am

It would seem to me personally that the majority of the ordinary citizen is not at all worse off in comparison with the genuine American federal government though the fed government can get to execute by some other laws. The governing administration can potentially manage their debt by publishing moolah and their debt deal techniques are helped by simply the number one military on the planet.
Susan Craig says:

June 10, 2010 at 8:55 am

@Kimi, yes the ordinary citizen will be harmed by the indiscriminate publishing of moolah! This is what the Weimar Republic did to try and manage Germany’s debt from World War I. Part of what brought the National Socialists to power was that ordinary citizens needed a wheelbarrow of ‘published moolah’ to purchase a loaf of bread and milk.
Maggie says:

June 10, 2010 at 11:47 am

Kimi….when money is just indiscriminently published it makes the value of said money (and that already in existence) worthless. Monetary value needs to be based on something tangible…ie…gold. If the government floods the market with “new” currency, the money you already have becomes devalued.
Darren Le Montree says:

June 10, 2010 at 10:47 pm

Nice piece. As expressed in the comments above, it seems well accepted that the federal government needs taxes in order to function. The rub lies in the questions of how much and from whom. The extreme liberals want to drove out innovation and turn the taxation system into a social engineering mechanism (basically the fine job done by Europe). Whereas, the conservatives would prefer to have all social programs disbanded, liquidate social security, eliminate medicare and all welfare and just let the poor people either grind away in angst or die. Neither way works which is why we have the modified system that we do—which swings from left and right of center like a pendulum with each election cycle. That being said, the current system is unsustainable fiscally because of internal and external forces—the aging of our population and the “flattening of the world” which means we are no longer a hegemic force able to continually grow our way out of the problem and the promises made decades ago are no longer feasible. In essence, the realities of the current state of affairs mean that we cannot have a “fair” taxation system under either model. When 1% of the people control 90% of the wealth, having the rich only pay what they would define as their “fair share” (flat tax) is folly. While expecting our slower growing economy to afford continually increasing debt or tax burdens to fund the ballooning social program obligations is equally impractical. With the system going broke as it is things can only get worse from the perspective of both the left and the right and will continue to get worse until there is some genuine problem solving versus the spin game that has overwhelmed politics in the modern era.
Doris Jean says:

June 15, 2010 at 2:02 pm

Taxing should be extremely limited and should never exceed ten percent. People should get together locally and pay for local parks, schools, police, etc. The politicians pay themselves too much money and their salaries are too high.
Debbie Bridges says:

June 27, 2010 at 5:13 pm

@Darren “When 1% of the people control 90% of the wealth, having the rich only pay what they would define as their “fair share” (flat tax) is folly.
” Federalist Paper 20 addresses this issue through what can only be called a Fair Tax in today’s language. “…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 frugal: and private oppression may always be avoided by a judicious selection of objects proper for such impositions”.
As to your other assertion; “Whereas, the conservatives would prefer to have all social programs disbanded, liquidate social security, eliminate medicare and all welfare and just let the poor people either grind away in angst or die. ”
I know of no conservatives who want the poor to “grind away in angst or die”. What I am my fellow conservatives would like is for the poor (and I was formally of their ranks, although I am hardly rich now) to as said by Benjamin Franklin, learn to fish as opposed to being given the fish time and time again. That is the biggest issue we have is that our government has made our citizens dependent on the government through entitlements. If someone is in need of assistance it should come from family, friends, church, and their local community. Government should be the absolute last resort used and only in times of true emergency.
Seth Richardson says:

June 27, 2010 at 7:08 pm

Darren writes: “Whereas, the conservatives would prefer to have all social programs disbanded, liquidate social security, eliminate medicare and all welfare and just let the poor people either grind away in angst or die.”

This is simply patent nonsense, and it’s a Progressive calumny without foundation. A conservative desire not to create or facilitate a welfare state cannot be seen to imply that conservatives, or Libertarians, want people to die in the streets from starvation and disease.

What Conservatives and Libertarians alike value is self-reliance and methods of public support of those truly in need that does not debilitate them and keep them in economic slavery, which is what the welfare state does.

Moreover, I have no objection to requiring people to save for their retirement, but the giant Ponzi scheme of Social Security today, where the current working generation is burdened with supporting all the retirees still living is simple insanity. Conservatives want Social Security REFORM, and my vision of it is to put one’s contribution into a PRIVATE savings account that the federal government has NO ACCESS to, rather than giving it to the government to skim and waste.

As for “1% controlling 90%” this is also nonsense. It’s what I call the Socialist Zero Sum Fallacy. This fallacy is based on the logical and rational error that Socialists make in assuming that in order for one person to acquire wealth, another person, or persons, must be oppressed and must give up wealth. It’s based on a deliberate misunderstanding of economics holding that there is a fixed supply of “wealth” and pouring it from one bucket into another advantages one person while depriving others.

But it’s a lie, and a deliberate one at that. It’s all part of the propaganda of Progressivism.

Any competent economist can tell you that the wealthiest people in the U.S. don’t keep their money under their mattresses, it’s constantly circulating and creating even more wealth for everyone, and for the nation. Wealth generates more wealth in nearly unlimited supply.

It must also be noted that the wealthiest 1/10 of 1 percent of taxpayers pay more than 40 percent of the government’s income tax revenues, so to say they don’t pay enough is preposterous.
Susan Craig says:

June 27, 2010 at 11:45 pm

I’m with Seth on this. If it was an across the board 10% not only would everybody (to quote our President) “have skin in the game” but also the so-called “evil rich” would still be paying a lions share of the revenue to the government. Just for arguments purpose say I earn $100 dollars a week and Darren earns $100,000 a week. I pay $10 and Darren pays $10,000 so the take is $10,010 government we each have a 10% stake in the game but Darren has provided over 99% of the revenue.
As to the Social Services currently provided by big nanny Fed, one of the biggest complaints is that it is a one-size fits all program. I believe that it is more properly handled at the State and preferably the local level where people are more inclined and conversant to local immediate conditions.
Seth Richardson says:

June 28, 2010 at 2:12 pm

I believe I recall a guest on Beck who was explaining the Laffer Curve, sorry I can’t recall his name, saying that a flat tax of about 14 percent on every transaction would replace all other necessary government revenues. Not positive about this however. Perhaps there’s an economic expert out there who can comment.

And you are absolutely correct that all social services should be dealt with at the state level, and that there is absolutely no need for the federal government to be involved except in the rare case where a particular state cannot meet it’s social services needs.

But to have every bit of tax revenue sent to Washington, have 20 percent or more skimmed off the top to do nothing more than pay for federal bureaucrats who turn around and send it BACK to the very states they took it from in the first place is pure economic idiocy.

It sometimes seems as if no one recognizes the fact that the vast majority of our tax money sent to Washington is not sent there to fund the legitimate functions of the federal government, it’s sent there to fund the political redistribution of that very same wealth back to the states, who have become dependent upon that federal largess to pay for all the unfunded mandates that the federal government imposes upon them using the carrot-and-stick method.

If the states would simply say “no thanks” to the federal handouts, as Colorado Springs did recently, not only would the federal government lose legitimacy for it’s bureaucratic burdens, but the states would be freed from federal intervention. Much of the interference we suffer under from the Feds is caused by our own state legislatures knuckling under to conditional grants from the Feds. The biggest carrot they have is the federal highway system, which they use to coerce states into, for example, setting DUI standards and mandating seat belts.

It’s all about politics, of course, because even state politicians have to bring home the federal pork, or so they believe, to get elected. They think (and probably correctly) that if they don’t do what the feds want and take the federal grants (extracted from us in the first place), state voters will be mad because some other state got a grant and they didn’t.

Which makes it our fault for not ourselves demanding austerity and flight from the federal teat by our state legislatures. Weaning ourselves away from federal largess is the beginning of restoring our liberty from oppressive federal taxation.
Susan Craig says:

June 28, 2010 at 5:58 pm

Seth, right again.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

June 9, 2010 – Federalist No. 31 – Cathy Gillespie

Federalist Paper 31, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 31, Federalist No. 31

Wednesday, June 9th, 2010

“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.”

Federalist No. 31 has one of the strongest beginnings and endings of any of the essays I have read so far. Hamilton begins by reminding us of the importance of “primary truths,” and “first principles.” When our elected officials are guided by the first principles and truths upon which our country was founded, our freedom and prosperity will be protected.

Mr. Cooper makes an excellent point in his essay today, that instead of scrutinizing specific tasks the government takes on, our elected officials should start from the macro level, and apply first principles in every decision, asking the question, “is this task a legitimate function of the federal government?”

After laying out the importance of the guiding truths in discerning the legitimate functions of government, Hamilton makes the case for the federal government having the “unqualified power of taxation,” so it has the resources to fulfill those duties and powers for which it is responsible, according to the Constitution.

Our modern day problem is that the federal government has utilized its power to tax, to fund powers far beyond the scope of those enumerated in the Constitution.

Hamilton could not imagine the federal government’s modern day usurpation of powers because the checks and balances the founders designed were meant to curb governmental encroachment. Indeed, because of the power of the states in selecting U.S. Senators (before the adoption of the 17^th Amendment), Hamilton envisioned States more likely to usurp federal powers, than the other way around.

Hamilton closes by reminding us that the responsibility to stop the encroachment of government at the state or federal level, rests with the people, thus ending Federalist 31 as strongly as he opens it. “We the people” must keep government within its proper scope and powers “delineated in the Constitution.” He states that the people “hold the scales in their hands,” and hopes they “will always take care to preserve the constitutional equilibrium between the general and the State governments.”

“Everything 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.”

How will “We The People,” adjust the scales to bring the constitutional equilibrium back into balance? It is clear the founders expect us to.

Good night and God Bless,

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

June 9, 2010 – Federalist No. 31 – Janine Turner

Federalist Paper 31, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 31, Federalist No. 31

Wednesday, June 9th, 2010

Howdy from Boston! It is thrilling to be here in a city that has so much revolutionary history! Juliette and I walked around in the rain and saw State Hall and Park Church. (Be sure to watch our behind the scene video!) We also saw the graves of Samuel Adams, Paul Revere and John Hancock. I spoke Samuel Adam’s words over his grave, “The pooling of property and redistributing of wealth are despotic and unconstitutional.” The bells then started to ring from Park Church so I said recited it again!

As I read Federalist Paper No. 31, I felt such a since of wonder and also such a sense of gratitude that I am having this opportunity to read the words of Publius. Understanding their interpretation of the United States Constitution and their vision of the country is empowering and incredibly relevant.

I am most intrigued with how the structure and checks and balances of our then newfound government were founded with such reason and based on the guidance and wisdom of history. As I read and digest their words, I am realizing how far we have strayed from their original intent. One of the ways is with the seventeenth amendment. This was a pivotal part of the balance of government. The seventeenth amendment was one of the ways that the states could keep their power. The senate was to represent the states and the house the people.

I wonder if the healthcare bill would have ever passed if the Senate had been left in its original intent? I also wonder if the Federal Government would ever have had the opportunity to become so vast and powerful if the Senators had continued to be elected by the state legislatures? Who has been looking after the states’ interest since the passing of the 17th Amendment?

The Federalist Papers reveal that Publius and our Constitutional forefathers never intended for the federal government to become so intrusive into the states’ rights, the states’ affairs or citizens’ lives. Alexander Hamilton writes in Federalist Paper No. 31, “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.”

Do our states have complete sovereignty today?

Another interesting statement in Federalist Paper No. 31 is: “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.”

Is this true today? I say it is not true today.

Alexander Hamilton’s last paragraph of Federalist Paper No. 31, is our call to action, “Everything beyond this, must be left to the prudence and the 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.”

“Everything beyond this must be left to the prudence and the firmness of the people; AS THEY HOLD THE SCALES IN THEIR OWN HANDS..” This quote has a tremendous amount of treasure. We, the American people must have prudence and firmness in regard to our governmental affairs. Publius talks often about the “genius of the people.” We should not underestimate ourselves. We should call upon our prudence in governmental affairs and we should be firm. The best way to do this is to be vocal and to vote. We the people rule… through our elected officials.

When I think about the shift in power in our governmental structure and checks and balances, I think about how our founding fathers would be greatly distressed. I, also, ponder upon the political environment during the years around 1913. Why was this amendment allowed to happen? Were our predecessors not firm, informed or prudent?

Of course, this will very likely be the thought process that our grandchildren may have about our generation? “Why did they allow our liberties to be constrained, our country to be diminished, by living beyond their means?”

It was we, the American people, who were to hold the scales in our hands. It was we who were to preserve the constitutional equilibrium between the general and the state governments. We the people. If our country fails it is because we the people have let it. Benjamin Franklin, when asked what he had constructed for the people during the Constitutional Convention, responded, “A republic, if you can keep it.”

Do our children know that they are the, “we the people?”
Or do they think it is the, “we the government?”

It is by our actions, education and involvement that they will see the true intent of our founding fathers, our United States Constitution and a government of the people, by the people, for the people. May it not perish from the earth.

God Bless,

Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

June 9, 2010 – Federalist No. 31 – The Same Subject Continued: Concerning the General Power of Taxation, From the New York Packet (Hamilton)

Federalist Paper 31, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 31, Horace Cooper, The Articles of Confederation

Guest Blogger: Horace Cooper, Director of the Center for Law and Regulation at the Institute for Liberty

Federalist #31 continues on the topic of the taxing power of the new central government. Contrasting his significant math and science knowledge with his considered skepticism about humankind generally, Hamilton suggests basic maxims ought to apply as a principle for government’s effective operation. Just as 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, Hamilton asserts that 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. In other words instead of putting the focus on the means of a particular government activity, greater attention should be paid to whether the purpose is a legitimate one or not.

Rather than merely scrutinizing the technique by which the central government carries out it task say, bailing out automobile manufacturers, Hamilton suggests greater consideration be given to whether it is a legitimate function of the federal government to concern itself with the success or failure of car manufacturers. 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.

Unless one is particularly scrupulous as to what responsibilities are assigned to the federal government, Hamilton’s view of seemingly unlimited powers of the federal government particularly in the area of taxing authority comes across as audacious and perhaps even dangerous. However, it is clear upon review that the real danger lies in not carefully assigning duties and responsibilities of the central government.

One key charge of the new government was and remains today, national defense. In the context of taxation, Hamilton asks how national security can really be put in the hands of the central government if it does not have the ability to call upon the resources, as it needs to carry out its duties. This is no spurious charge. One serious problem with the Articles of Confederation is that ostensibly the National Congress had responsibility for national defense, in practice it could not pay for or mandate the carrying out of many of its foreign policy priorities. Over time this reality could prove quite provocative to the enemies of the new country in America.

Hamilton sees that taxing authority is critical to carrying out national security responsibilities. 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.

In the military context, this argument is perhaps most powerful. Nevertheless, even outside of that arena one can contemplate areas of responsibility (such as the administration of justice) in which it is necessary to focus on the importance of the objective and therefore loosening the limits on methods. If the area of responsibility is appropriate, Hamilton argued that the central government needed the taxing authority to carry out the responsibility.

Critics charged that a general taxing authority for the federal government would make it difficult for states to raise the resources they need for their responsibilities, as the taxes of the federal government would tend to crowd out the resources needed by the states. It is true that excessive taxation would have that effect, but not necessarily taxation generally. Hamilton recognizes that there will be legitimate responsibilities that government should carryout. If those are excessively funded or there are duties undertaken greater than the legitimate responsibilities that government should have, the flaw is not with taxing authority but instead with the government’s makeup or its design. 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.

Powers split among a bicameral legislature along with an executive and judicial branch each with unique and overlapping authorities providing a check and balance against each other resulting in a greater protection of liberty for all the citizens will do more than a limit on the type of taxation policy.

Hamilton closes essay #31 with an observation that reveals a great amount of prescience for such a young man. He says that the same risks that could lead to a national government over-reaching in its power and authority over the people existed just as well with the state government. While at the time it was nearly universally assumed that state governments — being close to the people — would never overstep their bounds, it appears today that composition and structure matter just as much as the state level as it does at the local level. Modern state governments have taken on most if not more of the duties of the central government’s welfare state with far fewer organizational or structural restrictions on doing so than exist at the federal level. Taking the opposite view of Hamilton, many states have balanced budget requirements but no formal limits on the types of duties that it may assume. Often as a result the residents in these “ambitious” states are extremely overtaxed. States like Texas and to a lesser degree Florida have far more limits on the accepted tasks of the state government and their residents are taxed less. Nevertheless, regardless of one’s concerns about the lack of formal limits on taxation in the constitution, Hamilton concludes 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.

Horace Cooper is the Director of the Center for Law and Regulation at the Institute for Liberty

Wednesday, June 9th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

June 10, 2010 – Federalist No. 32 – Cathy Gillespie

Federalist Paper 32, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Constitutional Amendment X, Constitutional Amendment X, Federalist No. 32, Federalist No. 32

Friday, June 11th, 2010

Thank you to Professor Knipprath for your excellent insight into Federalist No. 32. We greatly appreciate your generous gift of time to the 90 in 90: History Holds the Key to the Future Project!

The purpose of Federalist 32 seems to be to reassure citizens that the Federal Government’s power to tax will not preclude states from raising the revenue they need to operate their state governments. While making that point, Publius gives us an excellent tutorial in the balance of power that exists between the federal government and the states, under the Constitution:

“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 sounds very much like the language in the 10^th Amendment:

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.

Publius goes on to explain the three types of cases where the Federal government is granted exclusive authority, overriding state sovereignty:

(1) “Where the Constitution in express terms granted an exclusive authority to the Union;

(2) where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority;

(3) 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.

Making it clear that states will be allowed to levy taxes on “all other articles,” except imports and exports, Publius does caution that it might not always be prudent for the federal government and states to exercise their concurrent taxation powers and tax the same articles, but that “an inconvenience of the exercise of powers” doesn’t “extinguish a pre-existing right….” Most people would agree that modern day levels of taxation at the state and federal levels have passed the point of prudence!

The balance of power between the federal and state governments Hamilton describes in the beginning of the essay was structured to ensure our freedom. The disturbance in the equilibrium of the balance of power between the federal and state governments has resulted in greater levels of taxation at the state and federal levels, thus limiting our personal financial freedom and damaging the economy.

As unfunded federal mandates on the state governments have grown, the states’ need to raise revenue has increased. IRS.gov lists only nine states without an income tax! As the states’ need to raise revenue has increased, they have become more and more dependent on federal dollars, with mandates attached, thus altering the balance of power even more. As the federal government has ventured in to areas our founders never intended, its need to raise revenue has increased as well.

Once again, we see the damage done by disturbing the delicate balance of power so artfully designed by our founding fathers. The more we learn about the original structure and design of our government, the better equipped we are to work to restore the equilibrium which protects our liberty.

Good night and God Bless,

Cathy Gillespie

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 32 – Janine Turner

Federalist Paper 32, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 32, Federalist No. 32

Howdy from Boston, well, really Quincy and Cambridge!
Juliette and I had an amazing day. It was a day devoted to one of our most influential founding fathers, John Adams.

We started our day with a trip to Quincy, sections of which used to be named Braintree. We visited John Adam’s very modest childhood home and then a few cobblestones away, the small, simple home where John lived with his brilliant wife, Abigail.

I was mesmerized when I saw the tiny desk where Abigail wrote all of her letters to John throughout the Revolutionary war. My sense of awe was rekindled when the Park Ranger recounted the story of how Abigail, realizing her son’s promise, and realizing the needs of her future country, sent her ten-year-old son abroad with John. She knew the experience would give him a wealth of knowledge – a knowledge that America would need in her future leaders. John and John Quincy traveled across the Atlantic in February. Their ship hit hurricane force winds and was struck by lightning and four crewmen died.

Abigail was and is an example of a wife and mother who knew no bounds of fortitude and selflessness. This is why I wrote about her in my book, “Holding Her Head High.”
A statue of Abigail Adams with her son John Quincy, who would become our 6th President, was in the town square. Inscribed on the statue were her words: “Improve your understanding for acquiring useful knowledge and virtue such as will render you an ornament to society an honor to your country and a blessing to your parents.” She is an inspiration for me as a patriot and a mother.

In John and Abigail’s first home was an even smaller desk than Abigail’s It was on this desk that John wrote the Massachusetts’s Constitution. Included in his draft of the Constitution for the Commonwealth of Massachusetts were: three branches of government, a bi-cameral legislature, a supreme court of the land, as well as, a list of “rights”. I would like to study the Massachusetts’s Constitution. The fact that the states had their own constitutions before the United States Constitution holds a revelatory poignancy to the modern day debate regarding states’ rights.

In Federalist Paper No. 32, Alexander Hamilton argues a point regarding the levies of money and the states’ power:
“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.”

This statement illuminates, once again, the original intent of the federal government, which was to respect the state’s rights and to be a federal power held to accountability through the checks and balances of both the people and the states.

After Juliette and I visited the original homestead of John and Abigail Adams, we visited Peacefield. Peacefield was the home of John and Abigail Adams after the war. In this home I saw the original furnishings: dishes, chairs, paintings and thousands of John Quincy’s original books on exhibit in the land’s first library – the John Quincy Adam’s Library. A poignant point that resonated through the experience of visiting their homesteads was sacrifice – a sense of duty for their country. John and Abigail were willing to put themselves in great peril – a peril based on value, faith and righteousness.

It is worthy to note that John Adams was chosen to be the one to represent America in England as our first ambassador. John Adams walked in to greet the king, the king who wanted to hang him, and announced that he was there to represent our new country – the United States of America. I am also in awe of the fact that it was John Adams who so valiantly fought for the Declaration of Independence and suggested that Thomas Jefferson write it. It was John Adams who nominated George Washington to be the General of the Revolutionary army. It was John Adams who, on his own accord and literally on his own, traveled to Amsterdam and negotiated a 3 million dollar loan for the our revolutionary army who had no shoes and were suffering tremendously. It was John Adams who was one of the five who negotiated the magnificent Treaty of Paris that ended the Revolutionary War. It was John Adams who predicted that the French revolution would be a bloodbath that would end in tyrannical government. The list goes on and on.

John Adams is truly an American hero. May we teach our children about his great genius, sacrifice and dedication to our country. May he be an example of what it is to be a selfless American patriot. When Juliette and I visited the room, which held the tombs of John Adams and Abigail Adams, John Quincy Adams and Louisa Catherine Adams, I was overcome with emotion. In this room, as tears flowed down my cheeks, the director of the Church of the Presidents, Arthur W. Ducharme, told me how important “Constituting America” was to the future of our country. It was a moment I will never forget.

God Bless,

Janine Turner

Thursday, June 10th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 32 – The Same Subject Continued: Concerning the General Power of Taxation, From the New York Packet (Hamilton)

Federalist Paper 32, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08, Article I Section 10 Clause 1, Article I Section 10 Clause 2, Article I Section 10 Clause 3, Federalist No. 32, Joerg W. Knipprath

Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

In various essays, the reader has met Alexander Hamilton, polemicist; in Federalist No. 32, Alexander Hamilton, constitutional lawyer, takes a turn. The topic is whether the power to tax granted to the national government under Article I, Section 8, clause 1, of the Constitution deprives states of the power to tax. In a logical and (mostly) clear progression of premises and conclusions rooted in classic exegesis of the Constitution, Hamilton lays out the argument that the state and national governments have concurrent powers to tax. The matter of “exclusive” and “concurrent” powers is an exploration of the mechanics of our federalism.

From the perspective of government, the power to tax is an essential aspect of sovereignty and self-determination. Our personal experience tells us that dependence on others for funds makes one less fully autonomous and in control of one’s life. Just as an invigoration of Congress’s power to tax was an essential part of the Philadelphia Convention’s mission, retaining the power to tax is essential to state sovereignty, and Hamilton seeks to assuage concerns on that point.

Powers granted to the national government are exclusive only if the Constitution says so (such as the power to make laws for the District of Columbia), if the power is expressly prohibited to the states in some manner (such as the states’ lack of power to tax imports and exports), or if a reservation of the same power to the states would be “absolutely and totally contradictory and repugnant” [italics in original] to the national government’s exercise of the power. All other powers are concurrent, and any conflict between the governments over whether one should tax an activity that the other is already taxing is merely a matter of pragmatic policy. Based on the language of the clause that grants the power to tax to the national government, and the clause in Article I, Section 10, that expressly prohibits the states from taxing imports and exports without Congress’s assent, Hamilton concludes that the power to tax is concurrent, not exclusive.

Today, interpreting powers as concurrent is preferred. That maximizes the residual sovereignty of the states. But, since it does nothing to reduce the powers of the national government, reading a power as concurrent merely multiplies the layers of (often duplicative) government regulations, as, for example, applicants for many types of permits know well.

Hamilton’s argument seems so clear, one wonders why he even made the effort. The answer lies in the sophisticated attacks from the Antifederalists that foretell of political conflict over the practical ability of both the national government and the states to seek tax revenues from the same sources, and over the broader issue of overlapping powers in this novel federal system.

The opponents, led by “Brutus,” see a deeper constitutional problem rooted in an inevitable grab for power by a national government that will seek ever-greater amounts of revenue, to the detriment of the states.“The power to tax is the power to destroy,” as Chief Justice Marshall would write later in McCulloch v. Maryland. Ultimately, the individuals or assets taxed will bear no further assessments. At that point, Brutus predicts, the national government will use the taxing power, the necessary and proper clause, and the supremacy clause to pass laws to gain pre-eminent access to available revenues and to preclude the states from gaining revenues needed to maintain their governments.

While one may question whether such a dire scenario will ever play itself out at a constitutional level through explicit federal legislation to prohibit state taxes (or whether such a law would even be constitutional), it is already happening indirectly. The national government’s hunger for tax revenues is becoming more voracious as ever more aspects of individual lifestyle choices are transferred to national bureaucracies. That leaves the states increasingly hard-pressed to find sources for taxes not yet tapped to the hilt by Congress, though it must be recognized that California politicians, at least, seem to be very creative in finding new turnips from which to squeeze figurative blood.

The national government has long exercised control over the states by distributing to them grants subject to conditions intended to induce state compliance with federal mandates. Those grants are funded through taxes that, if the national government did not levy them, would be available to the states, which could spend the revenues raised without needing to comply with federal mandates. This creeping control over state sovereignty through the taxing and spending powers is one aspect of the lawsuit by various state attorneys-general against the recently-adopted health care reform law.

Hamilton also contrasts the situation of an exclusive federal power where no state participation in the area is constitutionally permitted, with the case where, though the states have concurrent power constitutionally with the national government to legislate, there are “occasional interferences in the policy [italics in original] of any branch of administration [that] would not imply any direct contradiction…of constitutional authority.” A slightly modified version of the latter is the current interpretation of Congress’s expansive power to regulate interstate commerce. That power is concurrent, and the states are able, within broad limits, to regulate interstate commerce through, for example, inspection laws and truck weight regulations.

Congress also can pass laws under its constitutional powers that, under the supremacy clause, override (“preempt”) the states’ otherwise proper concurrent regulations. It was precisely this type of scenario that Brutus raised in his alarm about the effect of the Congress’s taxing power on the states’ power to raise revenue. Hamilton has not directly addressed that argument in Federalist No. 32. He attempts a response in the next essay.

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. Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums. His website is http://www.tokenconservative.com.

Thursday, June 10th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 33 – Janine Turner

Federalist Paper 33, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 33, Federalist No. 33

Howdy from Boston! Juliette and I continued our walk down the red lined path of the Freedom Trail today. (Check out today’s video either through our Facebook link to YouTube or the Video Box on the top of our website.) Boston is an incredibly beautiful city and the history is so well preserved! The city and its people have exceeded all of my expectations and it has been an absolute joy to visit.

We were actually able to walk into the Old Granary Burial Ground today. We saw the graves of Paul Revere, John Hancock, Samuel Adams and the men who were killed in the Boston Massacre. It was truly mesmerizing to be able to see the resting places of such heroes! It was also insightful to see how humbly they were buried. Paul Revere’s initial headstone was just a tiny headstone inscribed, “REVERE’S TOMB.” Everywhere we walked there was a statue of an American hero. If only every city could revere our Revolutionary history in such a reverent way.

Juliette and I were in awe as we gazed upon the beautiful Old State House. It was in this house that the Stamp Act was debated and it was from the East Balcony where the Declaration of Independence was first read to the people. Can you imagine such a moment?

FYI, I handed out Constituting America business cards and bracelets to fellow tourists along the way! Constituting America in Boston! (We are going to have bumper stickers soon so if you are interested in one, or even extras to pass out, e mail us!)

In regard to Alexander Hamilton’s essay today, I feel like I should say, “Same Subject Continued,” It is just remarkable to me how often Publius refers to the fact that the states would continue to have their rights, the federal government would remain small, and that the American people would be vigilant if the government ever started to cross its bounds. In today’s reading, Federalist Paper No. 33, Alexander Hamilton states:

“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.”

Need I write more? Spread the word of the pertinent relevancy of our United States Constitution and Federalist Papers! It a “measure to redress the injury done to the constitution.”

God Bless,

Janine Turner

Friday, June 11th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 33 – Cathy Gillespie

Federalist Paper 33, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Article I Section 08, Federalist No. 33, Federalist No. 33

In Federalist No. 33, Hamilton defends the Necessary and Proper clause, found in Article I, Section 8 of the United States Constitution:

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

Hamilton’s main defense of the clause, as Professor Knipprath points out, is to say that the clause merely restates a power that exists with or without the clause.

Driven by curiosity as to why the framers included the controversial words, if the power existed with or without them, I did some research.

I found the following information in the excellent resource book, The Heritage Guide to the Constitution, Edwin Meese III Chairman of the Editorial Advisory Board:

The necessary and proper clause served two purposes in the framers’ minds:

1. to allow the Congress to do what was necessary to organize the government (create executive departments, set the number of Supreme Court Justices, divide out judicial power among courts).

2. to help carry out Congress’s enumerated powers contained in Article I, Section 8.

In his essay on pages 146-150, in The Heritage Guide to the Constitution, David Engdahl tells us the opponents of the Constitution nicknamed this clause the “sweeping clause,” or the “general clause,” and Brutus, their spokesperson, said it “leaves the national legislature at liberty, to do everything, which in their judgment is best.”

Engdahl tells us that James Wilson who authored the clause, explained at Pennsylvania’s ratification convention that he saw the clause as “limited,” and “for carrying into execution the foregoing powers.” Wilson stated that the clause authorizes what is “necessary to render effectual the particular powers that are granted.” In other words, the clause authorizes no more than the powers already enumerated, and is to assist in fully effectuating those powers.

The Necessary and Proper Clause has become the proverbial camel’s nose under the tent, much as the anti-federalists feared. Congress is able to justify certain laws constitutionally by enacting legislation that is within the scope of its enumerated powers, but the same legislation may also affect areas outside of the enumerated powers, adding to the “federal creep,” unintended by the founders and predicted by the anti-federalists. As Professor Knipprath points out, the Necessary and Proper Clause is aptly nicknamed the “elastic clause.”

Hamilton’s answer to this problem is clear,

“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.”

This is why it is so important that “We The People” are educated, and understand the “just bounds of authority.” If we don’t know the Constitution, how will we know when it is injured?

Thank you to all of you who are joining us on this educational journey! Your energy and enthusiasm is inspiring, and we are learning from every comment on the blog!

Please continue to forward our web address, http://www.constitutingamerica.org to your friends, and encourage them to join us.

If you are silently reading along, please add your voice to our blog!! 90 in 90: = 180 is not complete, without YOUR thoughts!!

Have a great weekend!

God Bless,

Cathy Gillespie

Friday, June 11th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 33 – The Same Subject Continued: Concerning the General Power of Taxation, From the Daily Advertiser (Hamilton)

Federalist Paper 33, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 33, Federalist No. 44, Joerg W. Knipprath

Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

After the appearance in the preceding essay of Alexander Hamilton, Esquire, Federalist 33 sees the return of Hamilton, the rhetorical swordsman, slashing at his opponents and parrying their contentions. The target of his invective is the assertion that, though the national government’s power to tax may not be exclusive and can be exercised by the states concurrently with Congress, the necessary and proper clause allows Congress to expand the reach of its substantive powers beyond what is enumerated. Further, the supremacy clause enables Congress to override otherwise valid state laws that are in conflict with such overreaching federal law. In short, Congress might pass laws prohibiting the states to tax in various ways, as a means to protect Congress’s sources of revenue.

The heat of Hamilton’s response is a measure of the significance, then and now, of the bigger question. This is no longer about the power to tax. Rather, this implicates the breadth of the federal government’s power to act and, therefore, the very nature of the federal system and the division of sovereignty created under the Constitution.

This is not the last time that Publius addresses these topics. Madison has his turn in Federalist No. 44. Nor is The Federalist the only forum. The scope of Congress’s discretion to carry into effect its enumerated powers comes up in extended debate as early as the incorporation by the Confederation Congress of Robert Morris’s Bank of North America in 1781. It occurs again with great vigor in the debates in Congress and the Cabinet in 1791 over the chartering of the Bank of the United States. It occurs once more, in the Supreme Court in 1819, in McCulloch v. Maryland. It continues to this day. Not for nothing has this clause been termed the “elastic clause.”

In these debates the course of argument is always the same. As Hamilton points out, the necessary and proper clause merely restates a power that Congress already has by implication. Even if that clause were omitted, Congress could, by the very existence of a grant of substantive power, adopt any law needed to carry out the object of that enumerated power: “What is a power, but the ability or power of doing a thing? What is the ability to do a thing, but the power of employing the means [italics in original] necessary to its execution?…What are the proper means of executing such a power, but necessary and proper laws?” Congress may have only enumerated powers to which it must point whenever it acts. But within those enumerated powers, Congress has plenary authority, including choosing the proper means.

Once a power to adopt any means necessary and proper to an objective is conceded, it becomes necessary to limit the power. Otherwise, an unlimited power to adopt the means needed to achieve delegated and limited ends effectively creates unlimited power to legislate. These “means” can always be connected to some enumerated constitutional objective through linked justifications that, as Jefferson sneered, resemble the rhyme “This Is the House That Jack Built.”

Hamilton avers that only laws that are proper means to the constitutional objective are permitted. What is “proper” must be judged by the nature of the power to which it is directed. Thus, the federal government could not control intestacy laws because those would not be proper to the “national” nature of any federal power under the Constitution. Yet the Supreme Court recently upheld, under that same clause, a federal law that provides for the civil commitment of certain persons deemed dangerous even after they have completed their criminal sentences. While the criminal law under which these people were sentenced had a (bare) connection to the federal commerce power, it is very difficult to understand how the civil commitment law has anything but a very attenuated connection to a federal power. The connection (as Congress makes clear) is to “public safety,” which is not a delegated federal power, but, rather, a state power.

Moreover, the recent health care law imposes an “individual mandate” to purchase health insurance because that is necessary and proper to regulate the interstate health insurance market. The necessary and proper clause has long stretched, one might say, the meaning of the term “elastic.” Hamilton declares that the usual remedy for a violation must be the citizenry’s judgment. Unfortunately, when Congress expands its powers beyond previous bounds by pandering to some item on an interest group’s wish list, there is usually a collective yawn from the electorate. Will reaction to the foregoing examples be different?

Hamilton also analyzes the supremacy clause, which summarizes the fundamental principle that, within its assigned powers, Congress has plenary power that prevails over any conflicting state act. That supremacy principle extends to federal statutes and treaties, as well as to the Constitution itself. By approving the Constitution, the states accepted that its provisions superseded conflicting ones in their constitutions and laws.

Indeed, the supremacy clause principle and the specific listing of Congressional powers was the more benign proposal in Philadelphia. Madison, Hamilton, Washington, and other “large-state” nationalists supported the Virginia Plan that would have given Congress both a broader and more direct veto over state laws and the power to legislate “in all cases to which the Separate States are incompetent; or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” One shudders to imagine what policies such forthright grants would produce in contemporary Congresses when even the fig leaf of limited and delegated powers is removed. On the other hand, a skeptic might respond that, by constitutional subterfuge abetted by a mostly passive Supreme Court, Congress has already arrogated to itself virtually the same breadth of power.

Hamilton argues that only federal laws that themselves are constitutional can be the supreme law of the land. There is nothing to fear from that clause, as long as Congress does not exceed its powers under the other clauses. As discussed above, in that last point lies the rub.

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. Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums. His website is http://www.tokenconservative.com.

Friday, June 11th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 34 – Janine Turner and Cathy Gillespie

Federalist Paper 34, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, 15. Essays by Cathy Gillespie, Federalist No. 34, Federalist No. 34, Federalist No. 34

Howdy from Independence Hall in Philadelphia! Actually we just entered Interstate 95 South! Cathy, Juliette and I are returning from Philadelphia to Washington, D.C. Cathy is driving, Juliette is editing the behind the scene video and I am typing tonight’s essay on Federalist Paper No. 34 which Cathy and I are doing in tandem.

Cathy, Juliette and I were in Philadelphia scouting locations for our Constitution Day celebration of our Constituting America, “We the People 9.17 Contest” winners. It is going to be so much fun!! We are planning our events, which will include press opportunities, regional and national; entertainment; historical enlightenment and a bevy of educational wonders.

We visited the brilliant National Constitution Center, and we are excited to reveal the news that they have offered to exhibit ALL of the winners’ works at the center. Our winners’ works will be a part of the legacy honoring the United States Constitution. Our winners will also stand as a tribute to American citizens and other children regarding the value of knowing and respecting our Constitution.

The minute we walked into the doors of the Constitution Center we were enveloped by the magnificence of our founding fathers’ document. The details about the Constitution, exhibited in both a formal and modern way, instantly intrigued our senses. They had mesmerizing movies and interactive information at our fingertips and we wanted to stay for days.

One of our favorite places was the Signers’ Hall, which had statues of all of the signers of the United States Constitution, in animated conversation. It was so cool!! (Be sure to watch our Philadelphia behind the scenes video!) David Eisner, the President and CEO of the Constitution Center, has offered to have a screening, reading and performance of our winners essays, songs and short film (and the behind the scene documentary we are going to film of the winners) in the Kirby Theatre in front of a distinguished audience and press.

We then joined our Constitutional colleague and friend, Rochelle, who guided us through other visually stimulating opportunities in front of momentous monuments such as Independence Hall!! The winner’s trip to Philadelphia is going to be an enriching experience for all of us and an inspiring event for the country.

If you haven’t yet encouraged your children or children you know to join our “We the People 9.17 Contest” then please do so. There still is ample time! Entries are due July 4th.

Now we turn our attention to Federalist Paper No. 34.
The topics are varied in this paper but there were a couple of Alexander Hamilton’s statements that captivated Cathy’s and my interest.

“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 ambitions, of others.”

“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 tranquility, would be to calculate on the weaker springs of the human character.”

These two paragraphs represent Alexander Hamilton’s
genius and foresight. However “mild and beneficent” we may be, we are powerless to “extinguish the ambition of others.” How relevant is this statement to the challenges we face today with terrorism. A strong defense is the only rational choice when up against the “fiery and destructive passions of war” that weave within the fiber of human nature. If we do not remain vigilant then we will be basing our decisions along side the “weaker springs of the human character.” History has proven this time and time again and our forefathers always based their decisions upon the lessons of history.

When one doubts the timely application of the writings of the Federalist Papers and the resiliency of the Constitution, one needs to simply become acquainted with the phrases such as these by Alexander Hamilton in Federalist Paper No. 34.

America is under attack, and unfortunately will continue to be. We must not align ourselves with the weaker side of human nature. We must always be readily prepared to carry the torch of peace, freedom and prosperity with the wiser forces of human nature: wisdom, willingness, and a watchful eye that is buoyed by a strength and fortitude that defies the enemy.

God bless from now Mount Vernon, Virginia!

Janine Turner &
Cathy Gillespie

Monday, June 14th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 34 – The Same Subject Continued: Concerning the General Power of Taxation, From the New York Packet (Hamilton)

Brion McClanahan, Ph.D., Federalist Paper 34, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Brion McClanahan PhD, Federalist No. 34

Guest Blogger: Brion McClanahan, Ph.D., author of The Politically Incorrect Guide to the Founding Fathers

By the time Alexander Hamilton wrote Federalist No. 34 on 4 January 1788, he had been publishing essays on the topic of taxation at a blistering pace. He penned two the day before, and he authored seven essays, each around two thousand words, in the span of twelve days. No. 34 directly addressed portions of essay No. 7 by the Antifederalist Brutus, presumably Robert Yates, which appeared the day before in the New York press. Read in tandem, the two provide a window through which readers can clearly view the competing positions of the Antifederalists and Federalists.

Brutus charged that the unlimited taxing power for the general government under the Constitution would result in two scenarios: “Either the new constitution will become a mere nudum pactum [naked promise], and all the authority of the rulers under it be cried down, as has happened to the present confederation—or the authority of the individual states will be totally supplanted, and they will retain the mere form without any of the powers of government.” He additionally argued that coequal taxing authority as designed in the constitution was impractical in a confederated republic. In his estimation, taxes should be “divided” between the States and the general government “and so apportioned to each, as to answer their respective exigencies….” Thus, Brutus advocated a true federal republic that maintained State sovereignty, and in particular the expressed and limited taxing power of the general government. Simply stated, Brutus feared the destructive effects of a “national” government on State and local authority.

Hamilton retorted that history had proven this position incorrect. The Romans had two equal and often hostile legislative bodies with the power to repeal and annul the acts of the other, “yet these two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness.” But, Hamilton argued, the Constitution did not allow either the States or the general government to “annul the acts of the other,” and he also contended that the “wants of the States will naturally reduce themselves within A VERY NARROW COMPASS…” Hamilton countered that if the Framers had adopted Brutus’ line of reasoning, then the States would also be limited in their respective areas of taxation, either exclusively or proportionally, and the end result would be State subordination to the general government, the very thing Brutus argued against. Hamilton was admitting, however, through his statement that States would have “a very narrow compass,” that the Constitution created a “national” and not a “federal” republic.

States, Hamilton opined, would need little to support their domestic affairs while potential “contingencies” may require the vast and unlimited resources of the central authority. Limit the taxing power of the general government, and you limit the ability of the common defense. In his mind, history had proven that foreign and domestic dangers would arise and as such the “national” government should have the means to preserve the “tranquility” of the republic. “To judge from the history of mankind,” Hamilton stated, “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 sentiment of peace; and to model our political systems upon speculations of lasting tranquility, is to calculate on the weaker springs of the human character.”

Brutus agreed with Hamilton’s assessment of human nature, but he also believed that the States had a primary role in resisting foreign or domestic disruption. States ensured domestic peace by “administrating justice among its citizens,” and through “the management of other internal concerns.” This was the basis of the “happiness of the people,” and if the States did not have the resources to maintain peace—if they could not raise enough revenue—then they would be easily “subdued by foreign invaders.” Like Hamilton, Brutus believed history had proven his point, and if the States were robbed of adequate taxing power, then the “peace and good order of society,” what Brutus called the “province of state governments,” would suffer. After all, Brutus argued that the object of government was to, “save men’s lives, not to destroy them,” and as such the “united states” should be an “example of a great people, who in their civil institutions hold chiefly in view, the attainment of virtue, and happiness among ourselves.” Central authority and excessive taxation were not required to do so and could potentially result in internal discord.

Here are the two competing visions of the American order: Hamilton the nationalist; Brutus the champion of a federal republic. While Brutus incorrectly thought that the States would disappear if the Constitution were ratified, they have certainly been reduced to little more than administrative provinces for the federal government, and he was correct that revenue would be a consistent problem for State and local governments. Surely, State efforts to combat illegal immigration—“foreign invaders”—could be better augmented by revenues destined for federal coffers, and internal discord caused in part by excessive centralization and taxation has been a problem in American history. For his part, Hamilton never envisioned this happening. He firmly believed in 1788 that the States were an essential component of the new government, though not to the same extent as Brutus. As he later said, “The states can never lose their powers till the whole people of America are robbed of their liberties. These must go together; they must support each other, or meet one common fate.”

Brion McClanahan, Ph.D., is the author of The Politically Incorrect Guide to the Founding Fathers, and has written for townhall.com, humanevents.com, lewrockwell.com, and thetenthamendmentcenter.com. He currently teaches history at Chattahoochee Valley Community College in Phenix City, Alabama.

Monday, June 14th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 35 – Janine Turner & Cathy Gillespie

Federalist Paper 35, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, 15. Essays by Cathy Gillespie, Federalist No. 35, Federalist No. 35, Federalist No. 35

Hello from Virginia, three miles from Mt. Vernon! The Gillespies are so glad to have Janine and Juliette staying with us for a few days during their East Coast Constituting America Tour! They began in New York last week, travelled to Boston, and yesterday we visited Philadelphia (with a side trip to the Jersey shore)!

Today began with Janine and Juliette taping a radio interview with Laura Ingraham! Stay tuned to this site for news as to when it will air!

We then walked the halls of Congress, and visited several Members, including Congresswomen Michele Bachmann and Marsha Blackburn, and Congressman Scott Garrett, the Chair of the Congressional Constitution Caucus. We saw many groups of young people touring the Capitol Complex, and we took the opportunity to talk to as many of them as possible, and invited them to enter our We The People 9.17 Contest! We got a great reaction from them, and many indicated they would enter! Remember, entries are due July 4^th!!!!

We were excited to learn about the Congressional Constitution Caucus. We should encourage our elected Representatives to join this caucus, and assist Congressman Garrett in his mission of educating members of Congress about the original intent of the Founding Fathers.

Tonight, the Gillespie house is buzzing with Constitutional Activity! Janine is preparing for an interview with Fox News, Juliette and my daughter Mollie are editing the Behind the Scenes Video of our trip yesterday to Philadelphia, and Janine and I are writing our Federalist Paper No. 35 essay together, since we are in the same place.

Thank you to Joseph Postell for an excellent analysis of Federalist No. 35: a continuation of Publius’s discussion of taxes, and reflections on the nature of representative government. How fitting we are blogging on this subject, on a day we walked the halls of Congress!

Publius begins his essay by stating several maxims regarding taxes, including:

“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.”

“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.”

“The maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition.”

“Necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous.”

And, most importantly: “It might be demonstrated that the most productive system of finance will always be the least burdensome.”

The theme of these quotes is that the consumer, the merchant, and ultimately the economy suffers when taxes become oppressive. When raising taxes to address “necessities,” false reasonings do not render the hoped for results. For example, the stimulus bill was supposed to lower the unemployment rate to 8 percent or below, but despite all the money spent, unemployment has not reached that target. Would a less “oppressive” means, such as cutting taxes, have yielded better results?

In Federalist 35, Publius also responds to various criticisms the anti-federalists made regarding the makeup of Congress. The ratification opponents argued that only a Congress reflective of the public at large, with the same percentage of merchants, landowners, manufacturers, etc as exist in the general population of the country, could truly represent the interests of the people. Publius explains that this will never happen if people are free to vote for whoever they choose. He goes on to point out that the nature of a representative government is to look past the faction that the Representative may personally hail from, and work toward the greater good. Because members of Congress are dependent upon the votes of their constituents, Publius states that Congressmen will take care to inform themselves of the opinions of all their constituents, seeking out the best policies for all, and not just individual factions.

Publius ends with a description of qualities that he feels those who make decisions on tax policy for the country should have:

“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 calls on each citizen to judge for himself who best meets that criteria:

“And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found.”

As “considerate citizens,” our next turn to “judge” will be November 2, 2010. May we all exercise our judgment, and our precious right to vote!

God Bless,

Janine & Cathy

Wednesday, June 16th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 35 – The Same Subject Continued: Concerning the General Power of Taxation, For the Independent Journal (Hamilton)

Federalist Paper 35, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joseph Postell, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 35, Joseph Postell PhD

Guest Blogger: Joseph Postell, Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation

In the midst of discussing questions of tax power and policy, Federalist 35 ventures into a fascinating argument about the nature of representation in a democratic republic – a very relevant question today.

The argument about representation is a response to an Anti-Federalist claim that the House of Representatives will be too small to contain citizens from all classes and occupations, and that this will prevent “a due sympathy between the representative body and its constituents.”

When we first read this, we can’t help but identify with the Anti-Federalists. In 21^st Century America there could hardly be less sympathy between our representative body and its constituents!

But upon further investigation, Hamilton argues, we will see that the Anti-Federalists’ argument is “made up of nothing but fair sounding words.” Most significantly, he rejects the call for “an actual representation of all classes of the people by persons of each class.”

There are two related problems with the Anti-Federalists’ argument, according to Hamilton. The first is that it misunderstands the nature of representation. The Anti-Federalists presumed that representation should produce a legislature that is a “mirror” of the public at large. It should look like a microcosm of the people themselves if they could assemble directly for the purpose of making laws. Representation, in this view, is merely a practical mechanism which should reflect direct democracy as much as possible. It should not refine public opinion.

The second but related problem with the Anti-Federalists’ argument, Hamilton claims, is that representatives are not mere guardians of a particular interest. They are supposed to pursue the common good of the whole society. To argue that a legislative body should contain a composite of classes and occupations equal to the society at large is to imply that a cobbler’s interest can only be pursued by a cobbler, that an attorney’s interest can only be pursued by an attorney, and so on.

Such a claim is an affront to the Founders’ principle of equality, because it assumes that it is impossible for representatives to transcend the particular interests of society and pursue the good which is common to all. It implies that our interests are so different that they cannot be reconciled, and that the only alternative we have is a constant struggle of class against class, economic interest against economic interest.

In essence, the basic question is this: are we merely the sum of a variety of interests, or is there something higher than our parts? Should our legislature simply be composed of a variety of classes and occupations, each looking out for itself, or should representatives be chosen who can transcend these particular interests and combine them for the good of the whole?

Hamilton and the Founders were not so naïve as to think that various economic interests will always be harmonious. But they argued that representation would subordinate the pursuit of these particular interests to the pursuit of the general good. The way to do this is not to give every interest a seat at the table, but to keep representatives accountable to all of their constituents.

Hamilton argues, “Is it not natural that a man who is a candidate for the favor of his people and who is dependent on the suffrages of his fellow-citizens…should take care to inform himself of their dispositions and inclinations and should be willing to allow them the proper degree of influence upon his conduct?” Electoral accountability is the way to ensure that representatives pursue the public good, because it forces representatives to be informed of all of the interests of their constituents.

“This dependence” on the votes of the people, Hamilton concludes “and the necessity of being bound himself and his posterity by the laws to which he gives his assent…are the only strong chords of sympathy between the representatives and the government.”

In today’s politics, it often seems like representatives more often seek to satisfy particular interest groups than pursue the common good of the whole. Some have argued that the Founders wanted it to be this way. But in Federalist 35 Hamilton reminds us that a representative republic allows us to be governed by those who place the public good over the clash of particular interests.

Most importantly, we can only pursue the common good by abandoning the idea of separating ourselves into classes. Dividing ourselves into separate classes overlooks the natural human equality that is the basis of our rights, and it overlooks the common interests and affections that bind us together as Americans.

Joseph Postell is the Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation. He recently received his Ph.D. from the University of Dallas.

Tuesday, June 15th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 36 – Cathy Gillespie

Federalist Paper 36, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 36, Federalist No. 36

Another great day for Constituting America as Janine and Juliette continue their Constituting America East Coast Tour!

Today I had the privilege of joining Janine at the DC FOX Studios, where she taped an interview with Chris Wallace of Fox News Sunday. Janine will be featured as Power Player of the Week this Sunday, June 20. Click here to check your local listings for airtime!

I can’t think of anyone who deserves it more. As founder and Co-Chair of Constituting America, Janine has put her visionary idea into action, and is making a difference at the most fundamental level of our political system. She is reminding us of our roots, inspiring us to learn about the Constitution, and the founding principles of our government. I am honored to serve as co-chair of this effort with her, and am looking forward to seeing her as Power Player of the Week this Sunday!

Regarding tonight’s Federalist Paper No. 36:

Barrels of ink in the Federalist Papers were devoted to taxes – a sensitive subject for our forefathers. Taxation without representation had been one of the causes of the American Revolution, and Publius obviously saw taxation as an issue that could derail ratification if not sufficiently understood.

Taxes are no less sensitive an issue for the public today. Many a candidate has lost an election after being accused of raising taxes, wanting to raise taxes, or not paying his taxes!

In Federalist 36, Hamilton closes out a seven part series of explaining the federal and the states’ role in taxation, as well as defends the Constitution and the structure and powers set out for taxation. Again and again through this seven part series it is evident that Hamilton could not have predicted the size and scope of today’s federal government, and the tax burden it puts on the American people.

Hamilton had envisioned minimal state taxes:

“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.”

However, states tax much more than land these days! Only nine states don’t have a state income tax! What happened? One contributing factor to the ever increasing taxes at the state level are unfunded federal mandates, another way the federal government has crept slowly across Constitutional boundaries. As I was doing a bit of research for tonight’s essay, I stumbled upon a fascinating website:

The National Conference of State Legislators, http://www.ncsl.org Standing Committee on Budgets and Review has a section on their website called Mandate Monitor . Unfunded federal mandates are tracked and catalogued on this site. The most recent edition of the unfunded federal mandates list can be downloaded on this link: http://www.ncsl.org/documents/standcomm/scbudg/CatalogJune2009.pdf

Check out this weblink and list to see how much and what kind of burden our federal government is putting on the states!

As Jesse reminded us tonight, and as Janine likes to say: “Knowledge is power!”

Please continue to spread the word about Constituting America, our 90 in 90: History Holds the Key to the Future Blog, and the We The People 9.17 Contest for Kids! Please invite your friends to join us in our educational journey!

Thank you to all who are participating with us on the 90 in 90 Blog! Your voice is important, and we thank you for your gift of time, and your well thought out contributions.

Good night and God Bless,

Cathy Gillespie

Thursday, June 17th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 36 – Janine Turner

Federalist Paper 36, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 35, Federalist No. 36, Federalist No. 36

Howdy from Washington, D.C. and Mt. Vernon! Cathy, Juliette and I had another busy day Constituting America. We meet with some grassroots groups to get the word out about our Constitution and then we traveled to Fox News to tape a segment for Fox News Sunday! So be sure to set your Tivo to Fox News Sunday. It will air on local Fox and the Fox News Channel this Sunday!

I know that Federalist Papers N0. 35 and 36 are primarily dealing with taxes but I am rather intrigued with some other statements that are made by Alexander Hamilton about the prerequisites of a Congressional representative. I am struck by the lack of bias in his predetermination of the qualities of a representative.

“But even if we could suppose a distinction of interest between the opulent landowner, 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.”

“Where the qualifications of the electors are the same, whether they have to choose a small or large number,
their votes will fall upon those in whom they have the most confidence; whether these happen to be men of large fortunes or of moderate property or of no property at all.”

“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.”

This paragraphs, and especially the last, best represents the greatness of America – that in America any person of a strong mind may rise superior to the disadvantages of situation, and command the tribute due to their merit.
This, of course, was the personal journey of Alexander Hamilton. (I wrote about his mother in my book, “Holding Her Head High.) This was, also, the promise for the American people from a new nation in its embryonic stage. This was the promise that had germinated in the minds of our forefathers, men who, in their own right, deserve merit and study. They were men who had the brilliant insights, the reverence for Divine Providence and the fortitude to bring both the awareness of inalienable rights and the freedom to dream to fruition.

It is hard for us, who experience our freedoms daily with an ease that parallels the involuntary rhythm of breathing, to fathom the journey our ancestors bridged into the age of enlightenment. We have to stand back and really absorb their air to truly comprehend the magnitude and genius of their visions.

It is an honor to read our United States Constitution and the Federalist Papers. It is a door equally open to all, as are opportunities of every genre.

Let’s keep it that way.

God Bless,

Janine Turner

June 16, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 36 – The Same Subject Continued: Concerning the General Power of Taxation, From the New York Packet (Hamilton)

Federalist Paper 36, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Janice R. Brenman 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 36, Janice R. Brenman

Guest Essayist: Attorney Janice R. Brenman

Federalist 36: A Final Word on Taxes

The Federalist Papers contains seven entries specifically addressing how our fledgling nation was to handle the delicate and potentially volatile issue of taxation. Having touched upon Essay #30 dealing with taxation previously, let’s bookend the topic with a brief synopsis of #36 it is focusing specifically with the central government’s power of taxation: “The Same Subject Continued: Concerning the General Power of Taxation.”

The challenge of taxing a wide number of people fairly lies in the ability to ascertain who and how much to tax. Hamilton stressed the need for a non-oppressive tax code; one which reflects the interests of diverse individuals, ranging from merchants to carpenters to blacksmiths to lawyers. It was his hope that each individual would see the need to contribute a portion of their resources to insure continued economic growth, keeping safe a nation poised to give them the privilege of practicing trades as they saw fit and that they would be therefore more willing to comply with the taxing authority.

As Hamilton has observed, a government can be potentially be too efficient when it comes to preserving the power it has by attempting to take more power. A heavy handed taxing authority would be an example of this. Therefore, it would be preferred to collect monies from a wide swath of workers, while simultaneously shielding the “least wealthy part of the community from oppression.” As the nation was deemed to be a representative republic, congressional representatives selected locally should represent each district to the national government. Ideally areas with more residents would contribute a bigger share of taxes than those which were more rural.

Hamilton vehemently opposed poll taxes whereby a “head tax” was equally levied on every adult in the community. Though poll taxes can raise large sums of money, Hamilton criticized them as unfair burdens and would “lament to see them introduced into practice under the national government.” Poll taxes survived in the Deep South many years until deemed unconstitutional by the Supreme Court when they were used to limit the franchise.

The taxation issue and related debates have been around for a while. Disputes involving taxation upon the populace have existed between democratic governments as well as despotic ones. It is Hamilton’s view that a central taxing authority was necessary for economic growth of the Nation as a whole and for the new government to be able to effectively carry out its duties.

For a country that has gone through so many economic cycles, through boom and bust, one can only wonder how Hamilton would have kept our budgets balanced today, since our government has taken on so many more responsibilities and duties than he ever would have imagined. The size and scope of government today not only contributes to the present recession, it approaches a near crisis level of debt. Maybe it seems simplistic, but limited government focusing on specific tasks specially authorized in the Constitution would put our nation in a much stronger financial position and ensure individual liberty for all American.

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, 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.

Wednesday, June 16th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 37 – Janine Turner

Federalist Paper 37, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 37, Federalist No. 37

Howdy from Washington, D.C. Cathy, Juliette and I visited the Supreme Court today and Senator Scott Brown at the Capitol. I wanted to talk with him about laying a wreath at President John Adams grave since Senator Brown is from Boston and John Adams is from Quincy, just outside of Boston. As it so happened he already had that on his books! Yea! Be sure to watch our behind the scene video tonight! It is fun. Juliette worked really hard on it.

Be sure to show it to your kids as it may give them ideas for our contest!

Tonight’s Federalist Paper No. 37 by James Madison was just brilliant. I am going to simply transcribe some of my favorite statements because they are so thought provoking and wise and well, what more do I need to add, except that every member in Congress today should be required to read them.

“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, to obstruct, the public good.”

“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, we 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.”

“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 dependence 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 in a number of hands.”

“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.”

“.. delineating the boundary between the federal and state jurisdictions…”

“The real wonder is, that so many difficulties should have been surmounted; and surmounted with an 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 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 either 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 new experiments.”

THIS IS THE WISDOM WE NEED IN THE LEGISLATIVE AND EXECUTIVE BODIES TODAY. (AND NOTICE HE WAS NOT AFRAID TO MENTION “THE ALMIGHTY.”)

God bless,

Janine Turner

June 17, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 37 – Cathy Gillespie

Federalist Paper 37, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 37, Federalist No. 37

Wow! What a day! We wrapped up the last day of Janine and Juliettte’s Constituting America’s East Coast Tour with a wonderful morning at the Supreme Court. We learned about Chief Justice John Marshall (considered one of the greatest Chief Justices of all time), Marbury vs. Madison (which established the principle of judicial review), and some interesting trivia about who can qualify to be appointed as a Supreme Court Justice! We saw the beautiful chambers, and some other parts of the building not often seen. We even saw the bust of John Jay, one of the authors of the Federalist Papers! It is interesting this third branch of the government did not have a permanent home until the Supreme Court building was opened in 1935.

On a personal note, I had a bit of a challenging day, as we found a leak in my closet (and mold!), I got stopped by the Capitol Police because I didn’t put on my turn signal before turning (and had left my purse at home with my driver’s license in it!) and my health insurance was accidentally cancelled (it has since been reinstated), but in between all those events, Janine and I kept reading today’s Federalist Paper, No. 37, and discussing it, so we could get ready to write our essays tonight!

I found Federalist No. 37 a breath of fresh air, after wallowing in the weeds of taxes for the last seven papers. It was nice to take a break, and zoom out to the big picture of the Constitution once again. Madison, the father of the Constitution, is the perfect voice to remind us of the challenges that had to be overcome to produce this majestic document, a perfect balance of energy, stability, and liberty!

In this current environment of political polarization and bickering, I was especially interested in Madison’s observation that, “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.”

Today’s frenzied pace of life, which is so dependent on sound bites, and video clips, leads even more to elected officials and citizens who are tempted to pre-judge proposed policies without trying to understand them. Simply because a proposal comes from one political party or the other leads to snap judgments, and subjective analysis. To solve the tough problems our Nation faces, we need to find more of those who have “a sincere zeal for the happiness of their country,” and “a temper favorable to a just estimate of the means of promoting it.” We need more people in our country today – citizens and leaders – who are willing to objectively consider proposed policies, and find common ground to work for solutions.

Of course, it is hard to find common ground if we aren’t starting from the same foundation. That is why it is so important that we understand the founding principles of our country.

As we think about our own government and citizens, bitterly divided by factions, we can see that it was truly a miracle that the Constitution was produced! Madison’s quote:

“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,”

reminds us of the hand of God in the proceedings of the Constitutional Convention and the miracle that took place there.

May the miracle of the Constitution serve to inspire us and our leaders to work towards common goals and solutions, grounded in the founding principles of limited government, free enterprise and individual freedom.

What a gift it is to read the words of our founding fathers, and let them light our way!

Good night and God Bless,

Cathy Gillespie
Friday, June 18th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 37 – Concerning the Difficulties of the Convention in Devising a Proper Form of Government, From the Daily Advertiser (Madison)

Federalist Paper 37, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 37, Federalist No. 38, Joerg W. Knipprath

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist Nos. 37 and 38 depart from Publius’s usual fare of panoramic examination of the weaknesses of historic confederations or dissection of particular objections to the Constitution. Instead, Madison takes up the cause of the project as a whole and of those who remained in Philadelphia to see it through. The thematic thread running through Federalist 37 is “fallibility,” with repeated reminders of human limitations that call for humility and compromise.

His style varies, moving from the evocative tone of the raconteur to the righteous indignation of the remonstrator to the mild defensiveness of the weary apologist. His annoyance with the quantity and variety of criticisms is palpable. He impugns the motives of opponents whom he accuses of a “predetermination to condemn.” Unlike the uncritical enthusiasts who support the project and whose motives may be good or ill, these opponents have no good or even excusably misbegotten motives. To Madison, they act from personal gain or the unwavering arrogance of their righteous certitude.

Madison fears that the project might, like Gulliver, become tied down by the carping of Lilliputian critics. He knows that delay works against success of any significant and controversial political innovation. He declares, therefore, that he will appeal not to minds already made up, but to the honestly persuadable reader. He pleads with readers to consider the difficulties inherent in an undertaking as momentous as the crafting of a constitution, difficulties that necessarily result in imperfect compromises that expose points for easy attack. It has been said, “A camel is a horse designed by committee.” The Constitution is a camel, a durable and adaptable animal to be sure, but not a sleek and pampered horse planned by “an ingenious theorist…in his closet, or in his imagination.”

Benjamin Franklin, in a speech near the close of the Philadelphia Convention, revealed his doubts about parts of the Constitution. Ever the committed skeptic, he then declared his support “because I expect no better, and because I am not sure, that it is not the best.” Franklin expressed hope “that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility” and sign the Constitution. As Madison writes in the next essay, no government is perfect, so that form which is least imperfect is best.

Madison describes the difficulties faced by the Convention in balancing energy in government, stability of laws, and republican liberty, that is, those fundamental characteristics of good government that can be at odds with each. All constitutions share minimum common ground in that they reflect by whom and how governing authority will be exercised. He lays out the delicate balance the Convention had to strike in ordering that authority:

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 dependence 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 in 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 electors; 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.

Republicanism. Liberty. Stability. Energy. Ideas that animated the Framers, as reflected in numerous essays by Publius, those were also the objects of the Convention’s plan. That plan had to be practical, driven by experience, not by unbending fidelity to some abstract theory. The vastness of the project and the limitations of human ability complicated the task. It was not merely determining the republican operation of government through elections and representation. It was also the daunting work of designing a new federal structure by balancing the state and national political domains, and of properly calibrating the separation and interaction of the three branches of the national government, all while damping the jealousies among states and regions.

This endeavor is made difficult by the “indistinctness of the object [the absence of fixed rules of nature to show how these institutions should be designed to accomplish the objects of the plan]; imperfection of the organ of perception [the fallibility of the human mind that prevents us from recognizing the perfect path], inadequateness of the vehicle of ideas [the limitations of language in the expression of ideas].” Madison regrets that “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.” Interpretation of written text must start with the words. But every writing suffers from the inherent vagueness and imprecision of language. For contracts, laws, and constitutions, which affect groups of persons, the reader’s mere subjective impression will not do, and recourse must be had to various extraneous sources of meaning. Those imperfections may mar the Constitution; but they will also mar any alternative.

Madison is moved to wonder “that so many difficulties should have been surmounted….It is impossible for any man of candour to reflect on this circumstance, without partaking of the astonishment. It is impossible, for the man of pious reflection, not to perceive in it the finger of that Almighty Hand, which has been so frequently and signally extended to our relief in the critical stages of the revolution.” Due recognition of the fallibility of all involved requires of them humility about their own wisdom and at least a spirit of sensible compromise (though not, by that, a lack of firm principles). Those are the marks of statesmen in contrast to mere politicians, and Madison calls on both sides to be statesmen.

Good advice through the ages.

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. Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums. His website is http://www.tokenconservative.com.

Thursday, June 17th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 38

Federalist Paper 38, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 38, Federalist No. 38

Guest Essayist: Janine Turner

Howdy from Hollywood! Cathy and her daughter, Mollie, Juliette and I are in Hollywood, “Constituting America!” We met with a producer today regarding many things, including ideas for television specials and our game show! Tomorrow we are meeting with many, many people in the Hollywood industry to spread the word about our “90 in 90” blog and our “We the People 9.17 Contest!!”

Juliette and I have had a whirlwind trip starting in Texas. We traveled to New York City, Boston, Washington, D.C., New Jersey, Philadelphia, Washington, D.C. and now to Hollywood – all in the span of less thank two weeks!! We are “Constituting America” from the Atlantic to the Pacific!

I thoroughly enjoyed our Federalist Paper No. 38 today by the splendid James Madison. As he mentioned last night, it truly was the miraculous power of the “Almighty” that brought the new Constitution to fruition. I do believe we all agree, that with the rancor and division in our current Congress, we will never be able to achieve such levels of genius as that exhibited by the distinguished members of the Constitutional Convention.

Yet, I believe we are at as equally a dangerous crossroad now as we were in 1787. Sickness strikes our generation and it is permeating to our posterity. Will we heed the call of the doctor? Vision appears to be the most potent medicine necessitated by our current crisis. Sacrifice appears to be the most needed human virtue and bravery the highest knock at the door. Who will answer?

I believe it will be the genius of the people.

Common sense seems is my summary of today’s Federalist Paper. The array of history recounted by James Madison, which describes how other countries gave the construction of their Constitutions to the power of one man, is stunning. “Fears of discord and disunion” blinded their best interests. Once again this reflects the amazing feat of unity in our historic Constitutional Convention.

James Madison’s following argument is also striking:

“..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 and INDEFINITE PERIOD OF TIME.”

Once again, it is common sense. Common sense reveals the tremendous burden of debt that is threatening our liberty – on all levels – social, spiritual, financial, physical. Is this going to be dealt with by our Congress? Do their hearts beat with that of pride or with that of the patriot? Will we be saved from “the dangers threatened by the present impotency of that assembly?”

We the people must prevail. We must sound the alarm with our voices and our votes. Many good men and women serve in our current Congress. May God bless them yet, “…a consultation is held: they are unanimously agreed that the symptoms are critical.”

James Madison speaks a truth that all Constitutionalists believe. It is spoken here in this Federalist Paper. He warns about the “discord and ferment that would mark their own deliberations” and that the Constitution would not stand a fair chance for “immortality.”

“Immortality.” The Constitution was written for immortality! Our current dire straights, discord and ferment threaten our Constitution’s immortality. Ironically, it is only with our Constitution’s breath that our country will be saved. It is common sense.

God Bless,

Janine Turner
Friday, June 18th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 38

Federalist Paper 38, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 38, Federalist No. 38

Guest Essayist: Cathy Gillespie

First, a reminder to watch Fox News Sunday, for Janine as Power Player of the Week! Chris Wallace does a great sit down interview with Janine about Constituting America! Check your local listings for airtimes!

Thank you, Professor Knipprath for your essays yesterday and today. You have a great way of not only explaining, but augmenting and filling in the gaps!

I would like to echo Seth’s comments today, lauding the open and vigorous debate the founders engaged in during the ratification process. In this essay, Madison takes on the anti-federalists in the most direct attack yet, by listing their objections, including a lack of bill of rights, disagreement on how the bill of rights should be framed, unequal representation for big states in the Senate and small states in the U.S. House, concern about the power of direct taxation, wariness of possible taxes on consumption, worry of a tendency towards monarchy, etc. The list goes on and on.

Madison eloquently points out that the document is not perfect, but better than the alternative:

“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.”

Indeed, one of the most beautiful traits of our Constitution is that the founders knew it was not perfect. They had a mechanism to address that: the amendment process.

The amendments trace our country’s history, and are a vivid reminder for all to see of our country’s attempt to refine this majestic document. Some of the amendments have been wiser than others. Some corrected grave injustices, and some made changes that in hindsight may have been better left unmade. But they all reflect the founders’ intent as to how the Constitution should be modified, if change is to be made. Even the amendment process contains checks and balances!

Federalist No. 38 is an example of our country’s grand tradition of political debate at its finest. Through the Federalist and Anti-Federalist Papers, both sides were thoroughly aired in a way that is a lost art in our modern culture.

Thank you to all who participate in the civil, intelligent and insightful political discourse on this site, in the true tradition of the founding fathers!

Have a wonderful weekend,

Cathy Gillespie
Friday, June 18th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 38 – The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed, From the New York Packet (Madison)

Federalist Paper 38, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 37, Federalist No. 38, Federalist No. 68, Joerg W. Knipprath

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

While Federalist 37 defends the Philadelphia Convention and the Constitution by recalling the difficulties involved in completing such a complex and novel undertaking, Federalist 38 is a full-throated attack on the Antifederalists. To counter the accusations—at least formally defensible—that the Convention was a revolutionary body that threatened liberty, Madison first reminds his readers that the Convention differed from historical procedures for constitutional innovation. Traditionally, such change was put in the hands of (or seized by) a single law-giver. The danger to liberty posed by such a charismatic leader was avoided by the use of a multitudinous assembly. On the other hand, such an assembly has all the characteristics of faction that he described in the previous essay as making the Convention’s work so difficult.

After this rather mild prologue, Madison sets to work. He likens the United States to an imperiled patient and the Convention to a panel of physicians. The latter agree that the situation is critical, but not so desperate that it cannot, “with proper and timely relief…be made to issue in an improvement of his constitution.” [Here the reader pauses briefly to acknowledge the clever pun.] Then a prescription for relief is made, only to trigger an invasion of nay-sayers who, though they admit the danger, alarm the patient against the cure and prohibit its use. This reminds one of risk-averse bureaucracies that prohibit or stall the use of new drugs for grave conditions because the potential side-effects are not entirely ascertained.

Worse, the objectors cannot agree exactly why the cure is bad. Nor can they agree on an alternative. Madison obviously relishes the opportunity to list various objections, all arranged for maximum ridicule. Though he avoids names, Madison’s examples likely would have brought to readers’ minds various specific opponents, particularly in the New York and Virginia ratifying conventions. Mocking the opponents’ portrayed disunity in order to blunt the dangerous calls for a new convention that were resonating with the public, Madison uses the variety of the objections to declare that the Constitution would likely be immortal if it were put in effect “not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers. [Emphasis in original.]”

His role as a champion of the Constitution prevents him from giving rhetorical quarter to his opponents, but they were not the intemperate and intellectually vapid lot Madison portrays through his caricatured compilation. Opposing specifics of the Convention’s product hardly makes one deserving of ridicule. Madison should know. Of 71 proposals he made or strongly and openly supported at the Convention, he lost 40 votes. His desired constitution would have looked remarkably different and more nationalized than what emerged.

Both sides were composed of patriots who ardently desired the success of the republican experiment and the United States. Both sides also had partisans who pursued the more parochial interests of their respective states, as well as their own personal objectives. Usually these conflicting interests operated in the same individuals to varying degrees. The strategic disadvantage the opponents suffered was that they were not a tight-knit cadre, as the writers of The Federalist were. And, of course, they lost. The victor writes the history. But many of them were leading intellectuals, lawyers, politicians, and other educated members of the country’s elite. As Publius infrequently identifies the writers to which he is responding in a particular paper, I should like to take a few lines to mention some of the opposition leaders.

The many effective and famous Antifederalists included Patrick Henry and George Mason of Virginia, Samuel Chase and Luther Martin of Maryland, and Samuel Adams and Elbridge Gerry of Massachusetts. Some opposed the whole project; Henry declared he did not attend the Convention because he “smelt a rat.” Others just wanted a bill of rights. George Mason was one of the most important contributors at the Convention, but, along with Gerry, declined to sign when the Convention refused consideration of a bill of rights. Still others eventually supported the Constitution with varying degrees of enthusiasm.

Many Antifederalists used pseudonyms, in the custom of the day. There was Robert Yates, writing sixteen papers as “Brutus.” Judge Yates was a New York delegate who attended the Philadelphia Convention with Hamilton but left when the delegates moved beyond their charge only to consider revisions to the Articles. A moderate opponent, he was later recruited as a Federalist Party candidate for governor. His influential writings were widely circulated and known for their constructive and analytical criticisms, many of which, unfortunately, have manifested themselves over the years in the federal government that has evolved. Contrary to Madison’s claim, Yates often made suggestions for alternatives. It is curious that Publius never mentions Brutus by name (as he does a few others), although reading the former’s writings, it is clear from the language and the order of argument that he is often responding to the latter’s critiques.

George Clinton, likely author of seven “Letters of Cato,” was the longest-serving governor in American history at 21 years and a two-term U.S. Vice President. He presided over the New York convention and was a moderate opponent of the Constitution who favored adoption conditioned on amendments. His “letters” were widely read, and some historians believe that the effectiveness of his letters impelled the Constitution’s supporters to write The Federalist in response. Cato is specifically mentioned by Publius.

“A Federal Farmer” is traditionally associated with Richard Henry Lee of Virginia, a career politician who was, among many other things, a member of the Confederation Congress. More recent scholars believe that the writer is attorney Melancton Smith, a member of the Confederation Congress and the New York ratifying convention. Hamilton considered the Federal Farmer the most persuasive of the Antifederalists, and refers to him in Federalist 68. The tone in the two pamphlets containing eighteen letters is generally analytical, readable, and moderate. That makes it less likely that Lee, an emotional and powerful orator, is the author. Smith eventually voted for the Constitution, with amendments.

Towards the end of the paper, Madison engages in a dubious tactic of defending the Constitution by declaring the ways that the Confederation has exercised broad powers. That may seem good in theory, but it is unlikely strategically to convince those who are weighing arguments for and against the Constitution. Though the point is to make the Constitution sound tame, one can just as easily draw a different conclusion: If the Confederation Congress is so dynamic, why is there need for change? That said, inducing most of the states to cede their western territorial claims to the United States, taking control of the territory, and passing the Northwest Ordinance as a model of colonial administration for the territory was probably the Confederation’s finest domestic policy success and showed the—ultimately unrealized—potential of the Articles.

Friday, June 18th, 2010

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. Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums. His website is http://www.tokenconservative.com

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 39 – Janine Turner

Federalist Paper 39, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 39, Federalist No. 39

Howdy from Texas! We are home, after a whirlwind trip Constituting America, up and down the east coast – the birthplace of our country. I was still Constituting America today though – in the grocery store check out line. The woman behind me had two children and I told her all about our Contest!

I want to thank our Constitutional scholar, Professor John S. Baker, for his insightful essay today and for all of you who are blogging with us. Isn’t this an amazing and insightful journey?

Federalist Paper N0. 39 is stimulating. I am, once again, intrigued by Publius’ knowledge of history. James Madison’s detailed description of other republics compared to the one they constituted in the Constitution was a treasure to read. It is powerful to ponder upon the dichotomy of the roadmap our founding fathers constructed for us, as well as how it differed from other countries who claimed to be republics.

Our Constituting founding fathers truly experienced a profound profusion of ideas and their compromise, their willingness to see the bigger picture, proved revolutionary in an intellectual and spiritual way. Their
“balance of powers” were delicate, yet firmly planted upon the bedrock of the “genius of the American people.”

Their virtue, insightfulness, valor, willingness, foresight, bravery and determination have a reach upon the American spiritual landscape like a long branch of a Live Oak tree. Sturdy and protective and evergreen was their love for the country and their roots were immersed in the waters of wisdom.

I do believe, for those of you reading this who are of faith, that we should pray for these attributes to guide our leaders, representatives and “genius of the American people” today. If you are reading this and not of faith, then a meditative thought picturing a people who rise to meet our country’s challenges with dignity and grace will be powerful. It will meet with the prayers and lift America into a realm of enlightenment.

It begins with prayers and thoughts, and resonates with action. Awareness, Acceptance, Action. We are aware of the greatness that birthed our country, has kept it thriving and holds the seeds of hope. We accept the mission put in front of us – the mission to hold our representatives accountable to the “genius of the American people” and to fight to maintain a Republican America for our children – a Republic that holds the values, the rights and the structure of free enterprise we enjoy today. We take action by spreading the word about the United States Constitution because it is the glue that holds our freedoms together.

When the President and Congressmen and women take office, they swear to uphold the United States Constitution. They swear to preserve, protect and defend the Constitution. I marvel that it does not say preserve, protect and defend “the people.” I now know that it states, “preserve, protect and defend the Constitution,” because it is the Constitution that protects the people.

Without the preservation of the Constitution, without the respect of the Constitution, without the awareness and utilization of the Constitution, “We the People,” lay vulnerable to the dangers of tyranny, socialism, and being stripped of our rights. Without representatives that respect our Constitution, without a people who are informed about the Constitution – we are not protected.

Spread the word.

God Bless,

Janine Turner
Tuesday, June 22nd, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 39 – Cathy Gillespie

Federalist Paper 39, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 39, Federalist No. 39

There are still two weeks left for young people to enter the We The People 9.17 Contest!

How is the Constitution Relevant Today?

Entries due July 4^th!

High School Students: We need more short film, PSA and song entries!! We are accepting essays from high school students as well. Prizes including $2,000 per category; trip to Philadelphia; possible TV appearance!!

Middle School students: write a cool song, or an essay! Prizes include gift cards, and national exposure!

Elementary School students: draw a picture, or write a poem! Prizes include gift cards and national exposure!

Details and exact topics for each category on this link: https://constitutingamerica.org/downloads.php

Now for Federalist No. 39:

Thomas Jefferson called the Federalist Papers “the best commentary on the principles of government … ever written.” Federalist No. 39 certainly lives up to this quote!

This paper reads like a textbook, and wouldn’t it be wonderful if it were a part of our childrens’ textbooks! I am betting it is not often included.

First the definition of a Republic:

“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,”

Next, a careful analysis of the national vs. federal qualities of the components that make up the “real character of the government”:

(1)” the foundation on which it is to be established” – (ratification is a federal act)

(2) “the sources from which its ordinary powers are to be drawn” – the sources of power are national (U.S. House); federal (U.S. Senate); and a combination of national and federal (Executive Branch/Election of the President).

(3) “the operation of those powers” (national)

(4) “to the extent of them” (federal)

(5) “the authority by which future changes in the government are to be introduced” (neither “wholly national nor wholly federal”)

Federalist 39 makes clear the depth and breadth of the system of checks and balances the founders so carefully constructed. The three branches of government, and the enumerated powers of the national government are some of the more obvious checks and balances of our Republic. But the fact that the elements which make up the character of our government (foundation; sources, operation and extent of power; and authority by which changes are made) are so well balanced between federal and national qualities is amazing! It is like cutting into a beautifully decorated cake, and finding intricate designs within, and on the various layers.

It is the depth with which these checks and balances are etched into the structure of our government that gives me hope that our Constitution and our Republic will survive. Though we may drift from time to time, there are systems built into the Constitution that allow “we the people” to bring our country back onto the intended path when we stray too far outside the Constitutional framework.

The Constitution is our roadmap. We must look at it, read it, understand it, and respect it. It must stay in our national consciousness. How else will we know when we have taken a wrong turn?

Our liberty hangs in a delicate balance. When the balance is disrupted, we lose our freedom!

Thank you to all of you who are blogging and adding to the debate, and our collective understanding! And a big thank you to Professor Baker for your enlightening essay!

Good night and God Bless!

Cathy GillespieMonday, June 21st, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 39 – The Conformity of the Plan to Republican Principles, For the Independent Journal (Hamilton)

Federalist Paper 39, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 09, Federalist No. 10, Federalist No. 15, Federalist No. 39, John S. Baker Jr. PhD, The Articles of Confederation

Guest Essayist: John S. Baker, Jr., the Dale E. Bennett Professor of Law at Louisiana State University

Federalist 39 answers attacks that the proposed Constitution is not “republican” and not “federal.” In his response, Publius effectively redefines both terms.

Claiming the proposed government is not “strictly republican” is a serious charge. Publius recognizes this, saying “no other form would be reconcileable with the genius of the people of America; with the fundamental principles of the revolution; or the honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government.”

The term “republican” ( Latin “res publica,” or “public thing”) had an uncertain meaning. Common to its various understandings would have been an opposition to an hereditary monarchy and aristocracy. Republicanism referred to self-government, but proponents and opponents of the new Constitution had very different ideas about what that meant.

On the one hand, Publius acknowledged that “If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.” On the other hand, the vision of republicanism offered by The Federalist was quite different from that of the opponents.

Those opposing the Constitution, the Anti-federalists, generally believed that a republic could exist only within a small territory where citizens were able to know one another, live a communal life, and directly govern themselves. Their reading of the French political writer Montesquieu and the example of the ancient republics convinced them that liberty was possible only in such republics. Thus, the Anti-federalists argued that the government to be created by the Constitution would deprive the people of their liberty.

Publius had already argued in Federalist 9 that “the petty republics of Greece and Italy” leave one “feeling sensations of horror and disgust” because “they were perpetually vibrating between the extremes of tyranny and anarchy.” He also observed that opponents to the Constitution apparently were unaware that the states were already larger than the republics discussed by Montesquieu and that he praised the benefits of a larger “confederate republic.” Indeed, The Federalist contributes to political theory the idea that liberty is better protected in a large republic, as fully explained in Federalist 10.

Federalist 39 asks “What then are the distinctive characters of the republican form?” Publius finds that political writers have wrongly applied the term to states that do not deserve to be called republics. Consulting principles of government, Publius says “we may define a republic to be, or at least may bestow that name on, a government which…” (emphasis added). In other words, he is giving his own definition of the term republic, one which corresponds to principles embodied in the new Constitution. Thus, Publius says a republic may be defined as “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 [presidential appointees], for a limited period [members of Congress and the President], or during good behavior [federal judges].”

Finally, Federalist 39 contends that the language in the Constitution explicitly prohibiting titles of nobility and guaranteeing the states will have a republican form of government proves the republicanism of the proposed government.

This large republic was also to be a (con)federal republic. But the Anti-federalists also charged that the Constitution violated the federal form. Publius did not actually deny this particular charge. Rather, he contended that “a just estimate of [the argument’s] force” requires first ascertaining “the real character of the government.” Before explaining that the real character is only “partly federal,” he added that the argument’s force also depended on the authority and duty of the Convention. In the following essay, Publius will argue that the authority of the Convention, as well as its duty to the people, justified creating the form of government proposed by the Constitution.

Given the common understanding of “federal” at the time, the Constitution did violate the federal form. Prior to adoption of the Constitution, the words “federal” and ‘confederal” meant the same thing, just as “flammable” and “inflammable” currently have the same meaning. The Federalist, itself at times, used these terms interchangeably. Clearly, however, the Constitution proposed to create something different from the existing confederacy.

Federalist 15 had identified the great vice of a confederacy as the attempt by a league of states to legislate for state governments, rather than for individuals. The Articles of Confederation did not directly govern individuals, but the Constitution would do so – within its limited list of powers. The new government’s ability to reach individuals and the “necessary and proper clause” prompted the Anti-federalist fear that the Constitution would completely consolidate power in a national government.

Publius had to explain that the Constitution would not create a consolidated national government. Federalist 39, therefore, explained the mixture of federal and national elements among five essential aspects of the Constitution: its ratification or foundation [national], the sources of its ordinary powers [partly federal –the Senate; partly national-the House], the operation of its powers on individuals [national], the extent of the powers, i.e., limited [federal], and the method of amendment [neither wholly federal nor national]. Based on this mixture of elements, Publius concluded: “The proposed constitution, therefore, …is, in strictness, neither a national nor a federal constitution; but a composition of both.”

This “compound republic” created by the federal Constitution came to be known as “federalism.” As a result, the “federal” form became distinguished from the “confederal” form existing under the Articles of Confederation. This new form of federalism involved a residual – rather than complete – sovereignty in the states. Indeed, as a limited Constitution, neither the federal nor the state governments were “sovereign” in the true sense of the word as a supreme power answerable to no other power. Rather, under the Constitution, “We the people of the United States” are the political sovereign and the Constitution is “the supreme Law of the Land.”

Some argue that the Anti-federalists correctly predicted the consolidation of power in the national government. Such an argument, however, overlooks the critical shift of power caused by the Seventeenth Amendment. That amendment took the election of US senators from state legislatures and gave it to the voters. As a result, the key federal, i.e. state, protection against the concentration of power was lost. That is to say, the Seventeenth Amendment deprived the states of their direct representation in the federal government. As long as the state legislatures elected senators, the states had the ability to pressure enough senators, even if only a minority, to prevent incursions on state power. State legislatures no longer have that ability.

John S. Baker, Jr., the Dale E. Bennett Professor of Law at Louisiana State University, regularly lectures for The Federalist Society and teaches courses on The Federalist for the Fund for American Studies.

Monday, June 21st, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 40 – Cathy Gillespie

Federalist Paper 40, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 40, Federalist No. 40

Federalist No. 40 brings up a subject I have been curious about since embarking upon this journey through the Federalist Papers in April. How did the delegates, charged with revising the Articles of Confederation, justify constructing an entirely new government?

Madison lays out the case brilliantly. First quoting the recommendation of the Annapolis Meeting in September of 1786, and then the Congressional Recommendation of February 1787, Madison carefully analyzes the language used. He emphasizes the words, “such further provisions adequate to the exigencies of the union,” from Annapolis, and the words from the Congressional recommendation “establishing in these states a firm national government,” and “such further provisions…adequate to the exigencies of government and the preservation of the union.”

He then questions, if the goals in the mission statement are “irreconcilably at variance with each other,” i.e.:

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?”

Madison points out that one phrase deals with means, “alterations and provisions in the articles,” and the other with the ends, “national and adequate government adequate to the exigencies of government and the preservation of the union.” Madison argues the ends are more important than the means. While this view gave us our Constitution, it is an arguably dangerous view for our elected officials to take, and one that has been employed from time to time throughout our history and other civilizations to justify various acts.

Possibly realizing the danger of this mindset, Madison goes on to argue that, in fact, the it may not be impossible to reconcile the two charges of “alterations and provisions in the articles” with a “national and adequate government.”

He proceeds to walk through each step, stating:

1. an alteration of the TITLE, could “never be deemed an exercise of ungranted power.”

2. “ALTERATIONS in the body of the instrument are expressly authorized.”

3. “NEW PROVISIONS therein are also expressly authorized.”

4. Is “power is infringed, so long as a part of the old articles remain?”

Madison identifies the major departure from the charge of Annapolis and the Congressional recommendation as the change in the ratification process, from the requirement of the confirmation of all states, to the requirement of the approval of nine states. The founders altered the ratification process because they did not want to put the fate of the union in the hands of the 13^th state.

While Madison lays out the case for the scope of governmental reform undertaken by the delegates, in the end he reminds us that whatever the delegates proposed, “it 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.”

In the end, the judgment rested with the people, as it does with us today.

God Bless,

Cathy Gillespie
Wednesday, June 23rd, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 40 – Janine Turner

Federalist Paper 40, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 40, Federalist No. 40

Howdy from Texas! What a glorious day for the Constitution! My daughter and I marveled as we heard that a Federal judge had struck down President Obama’s six month moratorium on the drilling of oil in ocean waters. Whether one agrees or disagrees with President Obama’s decision, it is just awesome to see our Constitution’s checks and balances at work. Truly. My daughter and I discussed how the checks and balances keep tyranny from rearing its ugly head. It will be interesting to see what the Judge’s decisions will be through the appeals court process.

This is, of course, an example of why it is tremendously important that we, as citizens and guardians of our country, and our children, our future, know that we have a government of checks and balances. We, America’s citizens, are a delicate, yet vital, part of that balance. Within our voice and our vote is the weight of reason.

I thank you for joining us today and I thank Joseph Postell for his insightful essay! James Madison’s Federalist Paper No. 40 encompasses many pearls of wisdom. I found the following passage to be particularly intriguing:

“..the latter (the convention) 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.” By this he means, the people, through representation. One of the Federalist Paper’s phrases that repeats and repeats in my ear is, one they use quite frequently, (and I do too!) “the genius of the people.”

Awareness, Acceptance. Action. “We the People,” through people like you, are going to spread the word about the United States Constitution and Federalist Papers. We will accept our calling and then “We the People,” will take action, making educated decisions based on a foundation of knowledge. Based upon the principles of our founding fathers we, the modern day, “genius of the people” will persevere and transcend the wills of those who chose to bring America down. Knowledge is power. History is the key to the future. Our Constitutional founding father’s believed this then and we believe it now. They based our Constitution on the trials and errors of history, not ideology or rhetoric. Our Constitution has withstood the test of time. We must preserve, protect and defend the Constitution. It starts with you. It starts with your children. It starts with you family, friends and acquaintances. Spread the word!

God Bless,

Janine Turner

Wednesday, June 23rd, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 40 – The Powers of the Convention to Form a Mixed Government Examined and Sustained, from the New York Packet (Madison)

Federalist Paper 40, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joseph Postell, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 40, Joseph Postell PhD

Guest Essayist: Joseph Postell, Assistant Director of the B. Kenneth Simon Center for American Studies at the Heritage Foundation

One can only imagine the difficulty James Madison had writing Federalist 40. The question was this: did the Constitutional Convention overstep its authority by abolishing the Articles of Confederation in favor of a new government, rather than merely reforming the Articles?

Consider that when the Convention assembled in the summer of 1787, a government already existed in America. Although it had failed in practice, the delegates were supposed to revise, not to abolish the Articles. Moreover, according to the Articles, changes had to be ratified by all of the states in order to become law.

Imagine if the same thing happened today – if the states established a convention to revise the Constitution, but which instead called for scrapping the entire document and building a new one from scratch…and which created entirely new procedures for ratifying those changes!

Indeed, there were difficult legal questions regarding what the Constitutional Convention did.

Madison’s response to these issues seeks to answer two questions: “whether the Convention were authorized to frame and propose this mixed Constitution,” and “how far considerations of duty…could have supplied any defect of regular authority.”

In answering the first question, Madison defends the legality of the Convention’s recommendations. In the first place, Madison replies, the delegates’ duty was to establish a government adequate to its purposes as well as to revise the Articles. But if these two objectives were incompatible, “Which was the more important, which the less important part?” The objective of forming an adequate government, he implies, trumps the delegates’ assignment to revise the Articles.

Furthermore, Madison argues, how do we know when we have crossed the line from revising a form of government to abolishing it? Can we “mark the boundary” between “alterations and further provisions” and “transmutation of the government”? At what point does altering the government become destroying it?

Because the Constitution preserved the essentials of the Articles of Confederation, Madison alleges, the delegates simply revised the Articles rather than abolish them. Under the Constitution “the states are regarded as distinct and independent sovereigns.” Furthermore, “One branch of the new government [the Senate] is to be appointed by these [State] legislatures.” Finally, “in the new government as in the old, the general powers are limited, and…the states in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.”

Madison admits that the Convention departed from the Articles in one respect: the amendment process. However, Madison argues that this was good, because of “the absurdity of subjecting the fate of 12 states, to the perverseness or corruption of a thirteenth.”

Having answered the first question, Madison asks the second question – whether the delegates’ duty to their country could compensate for any defect of authority.

In response, Madison reminds his readers that the Convention merely proposed a Constitution for the people to approve or reject. Without ratification, the Convention’s plan was “of no more consequence than the paper on which it was written.”

The Constitution was ratified by the people, not by the Convention. How could the people lack the legal authority to change their Constitution? The delegates, Madison continues, “must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence” to forms “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.’”

The lessons of Federalist 40 are important even today. Madison explains that in a free society the people are the masters of the government, rather than vice versa. In a situation where the government cannot adequately pursue the good of the people, it is the right of the people to revise the forms of government to ensure that the substance of government is in accordance with first principles.

The Founders, Madison explains, did not intend to create a rigid government, forever impervious to change. Such a government would deny the people the basic right to govern themselves. Instead, the Founders left us an amendment process because they foresaw the need for future changes.

However, Madison also cautions us against changing “the essentials” of the Constitution: our federal system, the separation of powers, and the limited powers of the national government. Though we should always determine our constitutional forms, we have the responsibility to uphold the principles of the Declaration of Independence: that government exists to protect natural rights and must be limited in order to do so.

Tuesday, June 22nd, 2010

Joseph Postell is the Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation. He recently received his Ph.D. from the University of Dallas.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 41 – Janine Turner

Federalist Paper 41, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 41, Federalist No. 41

Howdy from Texas! I thank you for joining us today and I thank Professor Knipprath for his most insightful essay!

James Madison’s Federalist Paper No. 41 is full of profundities.

“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 necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.”

I know that James Madison was referring to the defense of the country but I believe this statement is applicable to today’s cultural attack on the Constitution. To oppose the Constitution to serve one’s ego, or one’s personal agenda, is vanity. If fact, it is worse than vanity, it is a misuse of power and with every small misuse, with every defiant gesture disregarding the Constitution or with every action usurping the Constitutional limitations placed on one’s power, one chips away at the Constitution. This defiance infects the Constitution with a germ, a conduit, which multiplies, misappropriates, and jeopardizes our country’s structure, our liberties, and our future.

The Constitution isn’t an ideology to be twisted to fit one person’s, or one’s party’s, ambition. The Constitution is the foundation upon which our country was built and the tracks upon which our country has traveled through days, years, decades and centuries. The engine on this track is the principals and vision laid out in the Constitution. The conductor is the people. To manipulate, dismiss or disregard the Constitution is to derail the train, running it into the edge of a precipice.

Does the future of our country dangle on the edge of a cliff today?

As James Madison says, “A bad cause seldom fails to betray itself.” To dismiss the United States Constitution is a bad cause.

“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.” James Madison words and our Constitutional founding father’s actions reflect their belief that the Constitution would preserve America.

Today that preservation starts with the citizen’s knowledge of the Constitution and the Constitution’s pervasive prevalence in the American culture.

As John Adam’s said, “Liberty cannot be preserved without a general knowledge of the people.

Spread the word.

God Bless,

Janine Turner

Thursday, June 24th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 41 – Cathy Gillespie

Federalist Paper 41, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 41, Federalist No. 41, Federalist No. 51

Yesterday we passed the halfway mark for the 90 in 90: History Holds the Key to the Future Program ! We are more than halfway through our 90 day journey to read the Federalist Papers and U.S. Constitution in 90 Days!

A big thank you to all our 90 in 90 particpants. We thank you for taking the time to read, and share your thoughts. Some of you blog so regularly, I feel I know you! Others pop in from time to time, and it is always refreshing to read a comment from a new person!

Please continue to spread the word, and invite your friends. Every comment adds to our group’s understanding. Don’t be shy! Your comment or thought may be just the thing someone needs to read!

Thank you to Professor Knipprath for your enlightening essay. You continue to be one of our groups’ favorite guest Constitutional Scholar Bloggers! We appreciate you coming back on during the day to add comments and answer questions. Today, your analysis of the Congress’s power to spend, and the general welfare clause was very helpful!

What a gift it is to read the writings of these brilliant men and have the benefit of hindsight – to be able to look back 222 years and see which of their predictions were correct, where the anti-federalists’ fears were substantiated, and to be able to heed their wise words, relating them to situations we face today.

As Professor Knipprath points out, Madison once again returns to addressing the anti-federalists’ fears of a standing army. Abuse at the hands of the British Army was a real and painful memory to our founding fathers. And throughout history standing armies had become enemies of the people they were charged with protecting.

Madison wisely recognizes the need for the Union to be equipped to protect itself:

“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.”

This statement is even more true today, when our enemy cannot be pinpointed geographically, and is ever present. Thankfully, the anti-federalists’ fears of a standing army were unfounded. As I mentioned in my Memorial Day essay, a recent Rasmussen poll showed that 74% of Americans have a favorable view of the U.S. Military. Only 12% had an unfavorable opinion and 13% weren’t sure.

While the anti-federalists’ fears of a standing army were never validated, their fears of Congress’s power to spend certainly were!

Madison protests:

“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.”

If Madison were alive today, I believe he might owe the anti-federalists an apology! The anti-federalists’ worst fears about “an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare,” have been realized. Congress’s taxing and spending is out of control, and the national government has reached into areas far beyond its enumerated powers.

What are we to do? In Federalist 51, Madison states, “A dependence on the people is, no doubt, the primary control on the government.”

“We The People” are to exercise our control.

“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, a be able to set a due value on the means of preserving it.”

I look forward to the next few Federalist Papers, as Madison defends the Congress’s powers, and we examine them in depth.

Good night and God Bless!

Cathy Gillespie

Thursday, June 24th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 41 – General View of the Powers Conferred by the Constitution, For the Independent Journal (Madison)

Federalist Paper 41, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 37, Federalist No. 38, Federalist No. 41, Joerg W. Knipprath

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

In a lengthy essay, Madison embarks on a series of defenses of Congressional powers that he pursues in more detail through Federalist 46. In Federalist 41, he proposes to divide that task over the course of the following several essays by examining whether any particular power is unnecessary and improper and also whether the entire mass of powers is dangerous to the continued vitality of the states.

He opens with a reminder that, in the end, the Constitution is a practical undertaking, not a theoretical blueprint for an ideal state. He derides the opponents as having “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 of trust, of which a beneficial use can be made.” He proceeds with a powerful and very relevant indictment. “[This tactic] 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.”

This passage richly describes a basic phenomenon in politics. Human institutions are designed by imperfect beings to control imperfect beings and administered by imperfect beings. “A government of laws, not of men,” matters, but only to a point. In the end, government is still administered by humans. Perfect systems are imaginary. “Utopia,” which we treat as if derived from the Greek “Eutopia” (a good place), actually is Greek for “not a place.” Utopias do not exist. Rhetorical appeals over potential, yet unrealized, abuses of power are a staple of political discourse. When considering the merits of politicians and political choices, there are always ideological purists who accentuate slight differences rather than bountiful similarities. For them, a political figure who does not perfectly reflect their own vision of the perfect system is suspect, and a political choice that deviates even in minor particulars from their utopian views must be condemned. The perfect, as the saying goes, becomes the enemy of the good. As he did in earlier efforts, such as in Federalist 37 and 38, Madison urges more temperate and balanced reflection.

After some general observations, he returns to a favorite topic of contention, the keeping of a peacetime army. He proclaims that the matter “has been too far anticipated, in another place, to admit an extensive discussion of them in this place.” Yet, he proceeds to declaim about the topic for half the paper, evidence once again of the frequency and relentlessness of the opponents’ attacks. Those attacks resonated with the public and with many delegates because of the troubling history of standing armies and the tension they reflect with republican ideas.

Two passages stand out. The first is, “Security against foreign danger, is one of the primitive objects of civil society. It is an avowed and essential object of the American union.” There are those who will happily give to the government powers to intrude into the most everyday matters, but act aghast when miliary funding is sought or when a state (reacting to the failure of the federal government to carry out its responsibility in such matters) seeks to protect its people from threats to security coming across the border. This kind of attitude inverts the purpose of government, to provide for personal security for people and allow them to pursue happiness as befits them, not to reduce people to a state of dependency on the government for personal needs.

The second passage is, “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.” As Publius has written before, necessity knows no bounds in the law. The first rule of nature, for individuals and societies, is self-preservation. There always exists, as countless writers on political theory have declared, a natural right of self-defense. For the proper exercise of that right, there must be a right to arm oneself with reasonable means, a right that applies to individuals as much as nations. Any attempt to restrict that right will fail, as the impulse to self-preservation will prevail at least in those individuals or societies who have not become personally or civilizationally enervated. Indeed, restricting that right will undermine the legitimacy of the constitution itself, as respect for the whole is undermined by repeated violations of an unsustainable provision.

The last portion of the essay discusses a power that has become a conspicuous symbol of the expansion of government, the power to spend. Madison objects that opponents of the Constitution have mislead the people in arguing that the power to “lay taxes…to pay the debts, and provide for the common defence and general welfare of the United States,” gives the Congress the power to legislate for the general welfare. First, he declares correctly that this is a nonsensical reading. “A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents…must be very singularly expressed by the terms ‘to raise money for the general welfare.’” The general welfare language, then, is not a broad grant of power that would make the following enumeration of powers superfluous and contradictory, but a limitation on the power to spend the revenue raised under the taxing power.

As an interesting historical side note, during the Convention, the clause, derived from language in the Articles, was intended to prevent spending of money for “internal improvements” that promoted the welfare of particular states or localities, rather than the general welfare of the United States. But Pennsylvania’s Gouverneur Morris, a strong nationalist who was also the principal draftsman on the Committee of Style that was responsible for the final wording of the text, surreptitiously inserted a semicolon between the power “to lay and collect…excises,” and the limitation of “to pay the debts….” That made the latter seem like an independent power, just as the other powers were separated by semi-colons. Connecticut’s Roger Sherman discovered Morris’s sleight of hand, and the Convention voted to replace the semicolon with a comma.

Second, Madison defines the general welfare as defined by the following specific clauses. He maintained that position in later debates. Hamilton, in contrast, during the debates in the Washington cabinet over the Bank of the United States, claimed that the other enumerated powers of Congress already include within them an implied power to spend for those objectives. Thus, a power to establish post offices includes the power to pay for them. According to Hamilton, the power to spend for the general welfare goes beyond the objectives listed in the Constitution. That is the long-established view of the Supreme Court, as well.

However, that raises the question of what limits exist on the power of Congress to spend. After all, if Congress can spend for objects not within its enumerated powers, it might be able to do indirectly what it cannot do directly. Spend money to control education, for example. Hamilton insisted that the limit was that the spending had to be for the “general” welfare. Yet, unlike the Convention, he also supported spending on subsidies for manufactures and, after some initial misgivings, on internal improvements. He had a much laxer view of “general” welfare.

Today, that leaves Congress in charge of defining “general” welfare. Since many expenditures are earmarked for projects that benefit particular individuals, companies, or communities, the Congress is adept at cloaking rather everything as somehow affecting the general welfare. The spending power has gone far beyond the understanding of the Framers. Bloated spending may prove to be much more of a threat to the national well-being of the country than the standing armies that prompted such concern.

Wednesday, June 23rd, 2010

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. Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums. His website is http://www.tokenconservative.com.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 42 – Cathy Gillespie

Federalist Paper 42, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 42, Federalist No. 42

“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.”

This quote sums up the challenges the founders faced in pulling such disparate interests together for the common good. Each state presumably had laws in place that favored their particular state. From commerce to naturalization, the elected leaders of the states had crafted policy to benefit their parochial interests. Even though Madison makes very convincing arguments for the necessity of the powers claimed by the Congress, it must have been very difficult for the States to cede some of their authority, even for their collective long term gain.

It is indeed a miracle that the delegates were able to set aside their states’ “impatient avidity for immediate and immoderate gain,” and produce the United States Constitution!

“Impatient Avidity for immediate and immoderate gain,” continues to be the stumbling block for many governmental reforms today, aggravated by our immediate gratification culture. If we want to read a book, we download it to our Kindle. If we want to watch a movie, we download it to our laptop or TV. We grab songs mid-air straight off the radio and pull them into our iPods! Hungry? Pop a meal into the microwave or drive through your favorite restaurant. Want to go somewhere? Hop on an airplane. Talk to someone? Call them on your cell or text them! If our computer is “slow,” meaning a page takes a few extra seconds to load, our blood pressure rises.

Given this way of life, it is no surprise that we want quick fixes to the policy problems our country faces. We don’t have the patience to work out the hard issues. Unlike our founding fathers, we have been unwilling to make short term sacrifices for long term gain.

Instead of doing the hard work necessary to reach a consensus in line with our country’s founding principles, and that most Americans could accept, health care reform was hurriedly passed in a matter of months.

Most people agree a simpler income tax code such as a flat tax, or a national sales tax in place of an income tax, would be an improvement on our complicated system! Yet, those who benefit from the complex code, or who currently pay no taxes, find it hard to support a reform that would cause them to personally sacrifice short term, but in the end bring more freedom and prosperity to all.

The same holds true for social security reform. Those currently receiving social security, or those who are about to receive it, do not want to give up their “immediate…..gain,” to support a reform that could ensure long term security of our citizens.

Our energy policy poses a similar challenge. We know our dependence on foreign oil is a problem, and depending on our relations with the world, could put our country in a crisis situation. But what are we doing to address it?

Susan mentioned immigration policy as another example of a “hard issue,” that our leaders have not had the tenacity to tackle.

These types of reform and legislative action take long term vision, and often cause some short term sacrifice. Our founders had the vision and fortitude to work through the tough problems and overcome “the clamors of an impatient avidity for immediate and immoderate gain.”

Can our elected officials do the same? We The People must make our voice heard, and encourage them to pursue policy with a zeal for the overall good, in line with our founding principles, despite “clamors of an impatient avidity for immediate and immoderate gain.”

Good night and God Bless,

Cathy Gillespie

Friday, June 25th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

June 24, 2010 – Federalist No. 42 – Janine Turner

Federalist Paper 42, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 42, Federalist No. 42

Friday, June 25th, 2010

Howdy from Texas!!!
“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 clamours of an impatient avidity for immediate and immoderate gain.”
– James Madison

The rising voice of the American people is mild, by this I mean reasonable, and it is being drowned out by a clamorous Congress and Administration seeking immediate gain. It is not unreasonable that the people want to be heard: Our forefathers had a great respect for the “Genius of the People.” It is not unreasonable to want:
A solvent budget
An economy based on honest, free enterprise,
Borders that are secured,
States supporting each other,
States regaining adequate sovereignty,
Terrorism taken seriously,
Respect for our allies,
Health care that remains in the hands of the caregiver and not in the grips of the Government,
The respect and adherence for the Constitution and its principles,
A government that does not prohibit the religious freedom of the people.

We as citizens plead for a selflessness from our leaders that reflects the magnificence, sacrifice, vision, and love of country and country men that embodied our founding fathers.

Our liberty, our Republic, our sacred honor, relies upon it.
God Bless,
Janine Turner

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 42 – The Powers Conferred by the Constitution Further Considered, From the New York Packet (Madison)

Federalist Paper 42, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 42, Horace Cooper, The Articles of Confederation

Guest Essayist: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

In Federalist #42, James Madison attempts to clarify the importance of national powers found in the Constitution that are essential to the successful operation of the government particularly in national and international affairs. Categorizing these powers as second and third class was a means of distinguishing them not to disparage them. Among them are: relations with foreign nations including the ability 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; and to regulate foreign commerce as well as interstate commerce between the states among others.

It is noteworthy that among the “second class of powers” he refers to is specifically the power to regulate and ban the importation of slaves. Rather than hide or downplay this provision, Madison like many of the founders understood that while the acceptance of the institution of slavery was part of the compromise that allowed them to go forward with the Constitution, they made sure the public understood their anti-slavery sentiment and their plans to exercise the powers at the federal level. Madison reminds his readers that “while it is 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” within the space of 20 years “It ought to be considered as a great point gained in favor of humanity …. within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; …..it will receive a considerable discouragement from the federal government, and may be totally abolished..” As Madison predicted and although it is often unmentioned, Congress banned the importation of slaves in August of 1808 the same year that the Constitution gave them the authority to do so.

In any event, Madison explains that while several of the international powers existed within the Articles of Confederation, others did not. Treaty making and ambassadorial relations were among the powers of the first government. However, the Constitution made treaty making easier by requiring two-thirds of the Senate to ratify them and caused ratified treaties to be treated as the equivalent of federal law in terms of conflicts with state laws.

On the other hand, the Articles failed to adequately address the issue of defining and punishing piracies and other felonies committed on the “high seas.” Madison explains that the Constitution is far superior in this regard because although tribunals were authorized under the Articles, the actual definition of the violations as well as the scope of activity covered was not provided for in the Articles. Madison feared that such a scenario could mean that one of the States could have a law defining an offense as piracy that the other states do not recognize. When a breach of this law occurs, Madison laments that such a situation could result in the other states being obligated to submit manpower and related resources to defend claims that they do not even recognize or embrace.

Since the regulation of international or foreign commerce had been addressed in other contexts, Madison passes on it here.

Among the third class of powers that Madison references are those involving “the harmony and proper intercourse among the States and these include: “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 securities 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.”

It is difficult to look at this list of authorities without seeing the merchant class sympathies of Madison and the founders. While it may seem incredible today to consider, Madison and Hamilton were not neutral on the question of whether the new government should be pro-business or not. Explicitly empowering the federal government to coin money, establish standards for weights, prevent counterfeiting, enact bankruptcy laws as well as create a federal mailing system and construct federal highways make much more sense if one understands the founders’ sympathies for America being a mecca for entrepreneurship and related economic opportunity.

Madison makes clear that the power of interstate commerce was tied to international commerce and without interstate commerce power state and local governments would continue to have the authority to frustrate trade. “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 tranquility.”

Madison recognizes commerce and business activity as crucial to the success of the American system. Madison makes clear that even in the context of Indian relations that commerce with the tribes was a key issue that warranted national government attention. “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.” Madison argues that with this issue handed completely and explicitly to the federal government the nation would get the benefits without undue restraint interfering.

Next Madison turns to the question of rules of naturalization. Instead of the uniform system that we take for granted, Madison complained about the fact that each of the former colonies had adopted its own views for immigration policy which prevented the new government from deciding in a sophisticated way who it desired to become citizens and who it didn‘t. “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. …. The result is that some states essentially had the ability to confer upon individuals rights that they could exercise all across the nation based solely on the happenstance of which area they entered.

Just as Madison argued that it was in our nation’s interest to have a uniform immigration policy established by the Federal government one would imagine his displeasure at the failure of today’s federal government to maintain control over its on rules with regard to immigration policy. Either because of complexity of compliance with immigration rules, a failure to construct adequate border barriers, limited personnel assigned to immigration enforcement etc, the federal government today is allowing a hodgepodge policy to form influenced more by where or how a person enters the United States instead of ascertaining in advance who should be allowed to enter.

Madison concludes the essay with a statement that reaffirms his view of the importance of business and commerce. Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.

Thursday, June 24th, 2010

Horace Cooper is a legal commentator and is the Director of the Institute for Liberty’s Center for Law and Regulation.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 43 – Cathy Gillespie

Federalist Paper 43, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 43, Federalist No. 43

The entry deadline for We The People 9.17 Contest is drawing near! The deadline of July 4 is only 9 days away. There is still time to enter, though, and we would love as many entries as possible!!

Most schools are now out for the summer, so please sit down with your child, grandchild, niece, nephew, or other children in your life, walk through the rules and guidelines on this link: https://constitutingamerica.org/downloads.php and encourage them to enter our contest!!

If you have high school kids, our contest is especially cool! The high school winners and a parent or guardian will be our guest for an exciting trip to Philadelphia on September 17, Constitution and Citizenship Day. Once in Philadelphia, the National Constitution Center has offered to show the winning short film and PSA in their theater, and use their theater as a venue for the winning song to be performed and the winning essay read. We have a press conference planned, and a possible appearance on a television show is in the works! High school students also receive $2,000 for the winning entry in each category: Short Film, PSA, Song and Essay. We are especially hopeful for more Short Film, PSA, and Song submissions, so encourage that teen in your life, grade 9-12 during the 2009-2010 Academic Year, to get their creative juices flowing, and get busy this weekend!!

Elementary and Middle School kids are part of the contest, too!! Middle School students may submit a song, or an essay and Elementary School kids submit a drawing, which will be used as the official greeting card for Constituting America, or a poem. Younger kids will receive gift cards and other cool prizes.

The winning entries will be showcased on a Behind the Scenes downloadable DVD that will highlight the first prize recipients, contain educational material about the U.S. Constitution, and interviews with the winners. We are making this DVD available on our website as a teaching tool for schools on September 17, Constitution and Citizenship Day, a day all educational institutions receiving federal funds are required to present educational programs about the U.S. Constitution.

We The People 9.17 challenges kids to think about how the Constitution is relevant to their lives today, and express themselves in new and innovative means. By creating their contest entry, they internalize a deeper interest in and awareness of our United States Constitution.

As for Federalist No. 43, I was amazed at the thoroughness of the founders in addressing some of the not so obvious, but important elements of a Republic. The laundry list of miscellaneous powers all contribute to “the safety and happiness of society.”

One of the most important powers listed in Federalist 43 is that of amending the Constitution:

“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 existence of an amendment process for the Constitution shows that our founders knew it was not a perfect document. There is a process for changing it. And even the amendment process contains checks and balances!

The Constitution is not a living, breathing document that changes with the times, or at the whim of a judge, Congress, or the President. That does not mean it cannot be changed. There is a process that should be respected, and the difficulty of making a change causes us to respect the amendments. They are reminders of our struggle as humans, and as a country to continually strive to improve, and to correct our mistakes. If we find an amendment doesn’t work, we have the freedom to repeal it, but even if repealed, the amendment will always be there, a reminder of what we tried.

Thank you to all who have blogged with us this week. A big thank you to Professor Knipprath for your thoughtful, well researched essays!

Don’t forget to recruit some kids to the We The People 9.17 Contest! It’s not too late!! Entries due July 4^th.

Have a wonderful weekend,

Good Night and God Bless!

Cathy Gillespie

P.S. See you Monday, for Federalist Paper No. 44!!

Friday, June 25th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 43 – Janine Turner

Federalist Paper 43, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 43, Federalist No. 43

Howdy from Texas. I thank you for joining us today and I thank the amazing Professor Knipprath for his diligent and intelligent contributions as one of our regular and treasured scholars! Isn’t it rewarding, this process of reading through the Federalist Papers?

I must admit that some nights, I am plowing through the night’s reading with such fatigue that I discover that my eyes are crossing. And yet, I persevere with the indefatigable spirit of our forefathers because I am constantly challenged by their sacrifices and tenacity and their marvelous wisdom. This is what our “90 in 90” is providing, a window of wisdom.

As I start the nightly reading I, at times, wonder how I will get through the pages and yet by the time I am finished with the reading, I am always exhilarated by the revelations I have encountered and most especially by the relevancy to today’s issues.

There are many aspects to tonight’s paper that are worthy of notation. One paragraph in particular:

“promote the progress of science and useful arts, by securing for a limited time, to authors and inventors, the exclusive right to their writings and discoveries.”

These words, freedoms and rights were the engine to the ingenuity and entrepreneurial genius in our country. Great minds were no longer restricted by the limits of ownership. The great ideas and industry of men were no longer chained by the denial of the fruits of their labor.

Men could now dream, fly and hope without being tethered. Free enterprise. The acknowledgment of hard work, tenacity and brilliance with the rewards that naturally align to such achievements are what led the likes of Thomas Edison to try again and again, at least a thousand times, until he successfully created the light bulb.

This is human nature, a psychology of the mind and soul, which our forefathers truly seemed to understand. Men will soar on eagle’s wings when they are free to pursue life, liberty and happiness.

This is one of the greatest arguments against Socialism and Communism, an argument that has been proven by the disastrous accounts of history. To stifle the hope, the industry, by withholding the rewards, is to kill the drive, the spirit.

To see the success of such freedoms and ownership of accomplishments, one has to only look around and see the vast array of astonishing accomplishments in our country from trains, planes, telephones to the heart transplants of modern medicine. Human nature thrives on incentives. Human nature flies on Providential inspiration.

Yet, men are not angels. Hence the check and balances that were intrinsically woven into our Constitution and founding principles. The modern day, knee jerk reaction is to concur with the prevalent belief that the checks and balances were solely to govern the rise of greed and quest for power. This is one reason.

Another reason, it seems, was to govern the jealousies and quest to dominate. Domination dresses in many guises. One that is less obvious in today’s culture, because citizens so quickly and conveniently forget the horrors of history, is an attempt to dominate through a permeation of the cultural thought: that the desire to succeed and flourish is unfair.

It is hard to get many balloons, filled with air, into confinement. It is easy to get many balloons under control when the air is out of the balloon. A flat spirit cannot rise. Why else would communism deny God, squelch creativity and punish free enterprise?

The trend of today is to teach our children that to succeed is bad. The trend of today forgets to teach our children their rights. Why else would the United States Constitution be touted as irrelevant and locked into trunks in dusty attics? Better yet, how many schools have copies of the United Stated Constitutions in their classrooms or libraries? How many households have a copy in their home?

“From each according to his ability, to each according to his need.” Polls reflect that most American’s today believe these words are in our Bill of Rights. They are the words of Karl Marx. Is it any surprise this is becoming the mantra of America?

It is because American’s do not know. It is because America’s children and college students are not required to read and study the United States Constitution.

Our saving grace will be the rise of our educated voices and the prevalence of our vote. Our saving grace begins with educating our nation’s children. It starts with knowledge. It starts in the hearts of Americans. It starts in the home. Spread the word. Talk with your children.
Teach them the words of Emily Dickinson,

“We never know how high we are
Till we are called to rise;
And then, if we are true to plan,
Our statures touch the skies.”

God Bless,

Janine Turner

Friday, June 25th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 43 – The Same Subject Continued: The Powers Conferred by the Constitution Further Considered, for the Independent Journal (Madison)

Federalist Paper 43, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Declaration of Independence, Declaration of Independence, Federalist No. 40, Federalist No. 43, Joerg W. Knipprath, The Articles of Confederation

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

In Federalist 43, Madison continues his examination of Congress’s enumerated constitutional powers, presenting a miscellany of provisions. Tucked away at the end of this rather lengthy essay, as if Publius half hopes the reader will be too fatigued to notice, is a matter of signal importance, the provision that only nine states’ approval was necessary to establish the Constitution. Publius dismissed this matter as inconsequential in the extended discussion of the legitimacy of the Constitution in Federalist 40.

One problem for the Philadelphia Convention was that it ignored the requirement in the Articles that any amendment (and certainly a wholesale replacement) had to be by unanimous consent of the states. Madison could have justified the nine-state requirement by declaring that the Constitution was a new project entirely severed from the Articles, and that the old system was dissolved when the Framers met in convention. Dissolving the bonds and returning to a “state of nature” had been the basis for the revolutionary founding under the Declaration of Independence. If the states were once again in a state of nature towards each other, unbound from the prior rules, the approval of the nine states, binding them alone, was proper. Every state that wanted to join had to agree, thereby preserving the social contract fiction of individual and unanimous consent.

For solid reasons, Madison does not select that option. For one, to do so would implicitly endorse charges that the Convention was incompetent to act beyond its mandate because the Constitution would be “revolutionary.” For another, in Federalist 40, Publius emphasized the continuity between the Articles and the Constitution. Likewise, Madison in the current essay describes the change as one merely of political form of an existing civil society, not as the foundation of a new commonwealth. All require obeying the Articles’ unanimity provision for constitutional change.

He is left, then, with intellectually more meager rationalizations. One of these is such strained legalism mixed with a splash of late-18th century American constitutional theory about the deficiency of the legislative amendment process under the Articles that he introduces the concoction with a self-conscious “Perhaps.”

The other is one of unvarnished pragmatism, untethered to any constitutional support. He appeals to the “absolute necessity of the case” (Rhode Island, not having sent delegates, was unlikely to approve); the lesson of “our own experience” (Maryland’s four-year long failure to adopt the Articles during the crucial period of the Revolution); “the great principle of self-preservation”; and the “safety and happiness of society…at which all political institutions aim, and to which all such institutions must be sacrificed” (the ends justify the means, just as in Federalist 40). The lesson here is that necessity creates its own legitimacy, and matters of extreme national interest and safety cannot be burdened by constitutional technicalities. In political theory this is the doctrine of “reason of state,” something that executives long have understood.

A few brief points about some other provisions mentioned. Several involve the organic connection between the national and state governments. The sections regarding admission of new states and control over territory belonging to the United States were intended to give express authority to what the Confederation had done in regards to the western territories. They provide a constitutional basis for the acquisition and integration of the new lands that marked the westward expansion across the continent.

The guarantee to each state of a republican form of government assumes that each state will meet the minimum of avoiding monarchy or hereditary aristocracy. Beyond that, republics can take varied forms, and Publius pledges the federal government to avoid interfering with the states’ choices among them. There are many who have argued that the Supreme Court’s reapportionment decisions violate that pledge.

The protection against invasion commits the Union to a fundamental covenantal obligation. Though “invasion” usually suggests military force, it can mean any threat to the stability of the state from outside its borders, particularly an armed threat. Arizona, facing spill-over from the Mexican drug cartel violence, as well as a more general criminality from illegal entrants onto its territory, might plausibly argue that the federal government has breached that covenant and forced the state to act on “the great principle of self-preservation.”

There are provisions related to the capacity of the national government to exist as a practical sovereign, such as the creation of a federal district as the seat of government. It is noteworthy that this section draws a clear distinction between “district” and “states.” Recent statutory proposals to extend voting representation in Congress to the residents of the District of Columbia must founder on that distinction and on the Constitution’s textual requirement that voting and representation (beyond the “municipal” government of the district) rests on residing in a “state.” Perhaps a cession of most of D.C. (excepting the main government district) to Maryland would solve the problem.

Requiring approval of amendments by three-fourths of the states (and introduction by two-thirds of the states or of the members of each house of Congress) represents a confluence of experience and constitutional theory. Early state declarations of independence and constitutions, both of which altered the existing constitutional orders in those states, were commonly done by majority votes of the legislatures. Such practices reflected the constitutional theory inherited from Great Britain that the legislature virtually represented the general will of the commons expressed through the instruments of parliamentary sovereignty.

However, those practices conflicted with the developing American doctrine that constitutional changes were “explicit and authentic acts” of popular sovereignty superior to ordinary laws. Legislation was, after all, merely an act by the people’s agents in a body created under a constitution. In that view, constitutions were not only descriptions of how things were run, but commands of how they must be run. Constitutions were law, created by the ultimate earthly lawmakers, the people. Since direct participation of the entire people was unrealistic, constitutions were to be proposed by special assemblies and approved by popular vote or a supermajority of representatives. The Constitution relies almost entirely on the supermajority vote principle.

The requirements for amendment were also recommended by experience. Legislative majorities are transient and, therefore, likely to lead to considerable instability and flux in constitutional structure. The experience with continuous constitutional agitation in the states during the 1770s and 1780s alarmed the Framers. At least equally alarming, however, was the hurdle presented by the unanimity requirement of the Articles. While its conformance to emerging American constitutional theory was pristine, it was a practical disaster by frustrating needed reformation. The Framers, being nothing if not practical in their project, sought to craft a method for amendment that was neither prone to instability by too frequent amendment nor to paralysis through too-stringent requirements. Debate continues about whether their solution has worked well, given the relative infrequency of formal amendment, or is too constraining and has resulted in giving the unelected courts too great a role in altering constitutional norms.

Friday, June 25th, 2010

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. Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums. His website is http://www.tokenconservative.com.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 44 – Janine Turner

Federalist Paper 44, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 44, Federalist No. 44

Howdy from Texas. I thank Professor Knipprath for joining us today, and all of you who have joined us on our blog.

When Juliette and I were in Boston we ran into a semi- circle of statues surrounding the American flag. One of the statues was inscribed “Religion” and the statue was of a man praying as he looked up to the flag. The other statue was inscribed “Industry” and it was a man at work. The other statue was inscribed “Learning” and it was a young man reading a book.

These are the three virtues that keep America great.

1. Religion – a moral basis for our lives and a moral compass for our country
2. Industry – the great American work ethic, free enterprise
3. Learning – as John Adams said, “Liberty can not be preserved with out a general knowledge of the people.”

I say, “Liberty can not be sustained with out a general knowledge of the United States Constitution.”

Americans are grossly void of such knowledge, even with the “Cultural Elite.” Recently, a respected political analyst stated that the Constitution denied him and women the right to vote.

This statement represents the negative knee jerk reaction to the Constitution and why the “irrelevancy” aspect permeates our society. The rest of the panel piped in about the Amendments, saying that they are a part of the Constitution, to which this particular analyst commented that they should then be taught with the Constitution.

Well, the Amendments ARE the Constitution, the continuation of our Constitution. They tell the history of our country, warts and all, in an honest and forthright way. Why wouldn’t it be taught? The continuing pages of our Constitution mirror our country’s continuation. The amendment process was stipulated in the Constitution because our founding fathers knew the “genius of the people” would want to make changes. It is there for all of us to see – past, present and future generations – the growth of our country and thus the relevancy that the Constitution imbues.

The most ironic question begs, why would this political analyst assume that Cathy and I would want to start a foundation that stresses the learning of a Constitution that would deny African Americans the right to vote, deny women the right to vote? Not to mention, deny the Bill of Rights – the first ten amendments?

This is the great challenge that we Constitutionalists encounter today – the misinterpretation of the Constitution – the easy, convenient dismissal of the Constitution as antiquated – the mantra that it is a document that is to be tossed aside.

When we, as Americans toss aside our Constitution, we toss aside our individual liberties. Tread on the Constitution and we tread on our freedoms.
Disregard our roadmap and we lose our way.
Dishonor the principles and we lose our dignity.
Renounce its structure and we lose our footing.
Blight its flame and we die in the darkness of a people who knew not, sought not, her own country’s light.

The learning of our Constitution is the moral industry of our day.

Janine Turner

Tuesday, June 29th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 44 – Cathy Gillespie

Federalist Paper 44, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Article I Section 09, Article I Section 10 Clause 1, Article I Section 10 Clause 2, Article I Section 10 Clause 3, Constitutional Amendment X, Constitutional Amendment X, Federalist No. 33, Federalist No. 44, Federalist No. 44

In Federalist No. 44 Madison completes his list of and defense of powers delegated to the federal government. In this essay he discusses restrictions on the authority of the States in Article I, Section 10 of the Constitution. Most of these restrictions make sense, even today, such as the restriction on States entering into treaties, coining money, producing paper money, granting any title of nobility etc.

In Article 1, Section 10, States are also prohibited from passing bills of attainder and ex post facto laws. I wanted to know more about this, and did a little research in the Heritage Guide to the Constitution . On page 170 essayist David Forte writes, “The framers regarded bills of attainder and ex post facto laws as so offensive to liberty that they prohibited their use by both Congress (Article 1, Section 9, Clause 3) and the states.” Essayist Daniel Troy points out “these are the only two individual liberties that the original Constitution protects from both state and federal intrusion.”

It quickly came back to me that ex post facto laws are retroactive laws, punishing an act that was lawful when it took place.

I had to look up bill of attainder, though. Webster defines bill of attainder (also known as an act or writ of attainder) as “an act of legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial.”

Madison states, “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.” David Forte, in the Heritage Guide, points out that some States had enacted these types of laws after the Revolution, and our founding fathers wanted to eliminate these tyrannical practices many had suffered under, under the crown.

It is interesting to note that the federal government’s powers are specifically enumerated in the Constitution, while the States’ powers are not enumerated. By listing only what the States are prohibited from doing, the groundwork is laid for what eventually became the 10^th Amendment:

“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.”

Madison spends a good deal of the second half of his essay defending the “necessary and proper clause.” We last heard about the “necessary and proper,” clause in Federalist No. 33, The Same Subject Continued: Concerning the General Power of Taxation, by Alexander Hamilton.

In both Federalist 33, and Federalist 44, Publius addresses what is to be done if the federal government oversteps its bounds, as many opponents of the necessary and proper clause feared.

Hamilton stated in Federalist No. 33:

And Madison in Federalist No. 44:

“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……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.”

A recurring theme of the Federalist Papers is that the responsibility to uphold the Constitution rests with the people.

To uphold the Constitution, we must first know it, and understand it.

I am grateful for all I am learning each day. Some days I learn from an enlightening quote that pops off the page. Other days, I delve deeper into a topic I don’t quite understand or want to learn more about. Every day, I learn from all of your blog comments and through our wise and talented Guest Constitutional Scholar Bloggers. Thank you to Pofessor Knipprath for being one of our most frequent contributors! We love your essays!

Thank you for joining us on this journey, as we strive to continue learning, so we can live up to the phrase our founders bestowed upon our collective intellect, “the genius of the people.”

Good night and God Bless!

Cathy Gillespie

Monday, June 28th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 44 – Restrictions on the Authority of the Several States, From the New York Packet (Madison)

Federalist Paper 44, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 44, Joerg W. Knipprath

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist 44 completes a series that examines specific grants of power to Congress. Madison identifies two classes of powers. One involves direct limits on the states; the other involves a direct grant to Congress and indirect limits on the states.

Among the first, Madison cites prohibitions—carried over from the Articles—against foreign policy by states, a practice that is inconsistent with even weak notions of union. A more significant innovation is the prohibition on the coinage of money and the use of paper currency (bills of credit). Such activities, he believes, can be carried out responsibly only by the national government, a conviction that, one trusts, would be shaken to its foundation were he alive today. His disquisition on the perils from profligate printing of paper money is illuminating:

“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 ….”

Why he believes that the federal government would be less scandalously addicted to easy money policies than states such as Rhode Island is difficult to fathom, and he undertakes no explanation. Presumably, he places his faith in the contest of interest groups spread throughout the large republic, especially debtors versus creditors, that would limit the likelihood of an extended “rage for paper money” that he condemned in Federalist 10. If so, he misjudges the effect on spending from “log-rolling,” “earmarks,” and patronage fostered by special interest groups and guarded by entrenched Congressional barons. Even if these factions were unlikely to influence the federal government individually, they quickly learned to act in concert, a habit that the pragmatic Framers either were derelict in ignoring or believed might be controlled through constitutional structures.

His explanation for the prohibitions of bills of attainder (legislative decrees of criminal guilt against an individual or group that were routinely used against political opponents in 16^th and 17th century England) and of ex post facto laws (laws that retroactively criminalize conduct), as well as of laws that impair the obligation of contracts, is instructive. The last clause arose from experience with the practice by states to cancel public and private debts (at first those owed to British subjects, but later also obligations owed to American creditors) and to meddle otherwise in vested contract rights. A contentious topic at the Convention, Madison justifies the “contracts clause” as needed to combat economic distortions and social disturbance caused by persons seeking government support for their economic schemes: “[The people] 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.”

However, if such interferences with vested contracts were to originate in federal law, they would still be invalid. Like bills of attainder and ex post facto laws, they are so fundamentally destructive of security in one’s person and property, Madison writes, that they violate the “first principles of the [Lockean] social compact.” This raises an interesting point, one eventually taken up by the judiciary. If a constitution does not expressly address the legislature’s power to abridge a particular personal right, does that silence permit the legislature to limit that right? Or are there extra-constitutional limits on the discretion of the political majority, beyond those expressly enumerated in that constitution?

If appeal may be made to such extra-constitutional principles in political debate to prevent adoption of a law (which surely may be done), will such an appeal also lie in a judicial proceeding to declare the law unconstitutional once it is adopted (a much more dubious proposition)? If the answer to the last point is affirmative, exactly what principles may be considered, and how would the judge know? “First principles of the social contract” flows easily from the pen of the writer and the lips of the orator, but it is freighted with assumptions and epistemological uncertainties. Judges are chosen for their knowledge of the law, not their “wisdom” as political or moral philosophers, notwithstanding any contrary assertion by the occasional Supreme Court nominee.

Are same-sex marriage, polygamy, suicide, or abortion part of such “first principles”? We can be fairly certain of what Publius would have said. What about the right to pursue a calling or to run a business without a myriad of labor, environmental, and other regulations that dull initiative? The response of the Framers in 1780s republican mode (not in the then just-emerging “classic liberal” mode) might be surprisingly equivocating.

The second class of grants to Congress discussed in Federalist 44 includes the necessary and proper clause and the supremacy clause, topics already addressed by Hamilton in Federalist 33. The examination of the necessary and proper clause is a preview of the famous McCulloch v. Maryland case in 1819, considered by many the Supreme Court opinion with the greatest impact on American politics. The initial issue in McCulloch was Congress’s power to charter the Second Bank of the United States, a controversy that had begun even during the Articles with the debate over Robert Morris’s Bank of North America and persisted through the wrangling in George Washington’s cabinet in 1791 over Hamilton’s proposal for the First Bank of the United States.

Congress has no express power to charter corporations or banks. Echoing Publius, Chief Justice Marshall noted in McCulloch that every power to accomplish an end carries with it, by necessary implication, the power to adopt the means to achieve it. This is a fundamental principle of agency law, and Congress has been delegated certain tasks by the people. It is also an inherent aspect of government. But there is a flaw. The Constitution is not silent about those means.

Luther Martin, Maryland’s wily attorney general in McCulloch, argued instead that the necessary and proper clause provides an express definition of the means to be employed, thereby negating any theory of implied powers. He then claimed that “necessary and proper” requires a showing of indispensability. Marshall disagreed, ruling that “necessary” meant “convenient” or “appropriate.” His interpretation vastly expanded the constitutional discretion for Congressional action. In light of that ruling it is noteworthy that Madison describes the power conferred under that clause as “indispensably necessary” and equates this to those means that are “requisite,” which the dictionary defines as “essential.” One is left to speculate whether the role of the national government might be different today, had Martin’s—and, apparently, Madison’s—more restrictive definition prevailed.

Monday, June 28th, 2010

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. Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums. His website is http://www.tokenconservative.com.

March 6, 2011/1 Comment/by Janine Turner and Cathy Gillespie

Federalist No. 45 – Cathy Gillespie

Federalist Paper 45, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 33, Federalist No. 45, Federalist No. 45

“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.” James Madison, Federalist No. 45

In Federalist 45, Publius once again assures us of the limited, but necessary nature of the federal government’s powers. In previous essays Madison and Hamilton have assured readers that if, in the unlikely event, the federal government oversteps its bounds, the states will sound the alarm, and the people will rise up to defend the Constitution.

Of course, the picture painted by Madison of the few and defined powers of the federal government in Federalist 45 is radically different than our reality today. One is tempted to ask, how did these wise men get their prediction of the future so wrong?

Assuming the structure of government designed by our founders was sound and sufficient to preserve individual liberty, a more appropriate question might be, how did our country deviate from the roadmap they laid out for us?

The Constitution, as designed by our founding fathers, creates a system of government designed to preserve the peoples’ individual liberty. Our liberty hangs in a delicate balance of power between the federal government and the states.

As with any delicate structure or piece of machinery, when you move a part that affects the balance, the structure begins to fall, or the machine ceases to function in the way in which it was intended.

One of the key points Madison makes in his assurance that the federal government will not encroach upon state governments is the provision in the Constitution that “The Senate will be elected absolutely and exclusively by 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.”

The 17^th Amendment, which took the appointment of U.S. Senators out of the state legislatures’ hands, and provided for the direct election of U.S. Senators by the people, fundamentally changed the structure of government the founders had designed. An important check on the federal government’s power was removed.

The other factor Publius did not foresee was the phenomenon of federal funding offered to states with strings attached. As more burdens are placed on states by the federal government through unfunded federal mandates, the enticement of federal dollars with strings attached grows. When states accept this type of funding, the federal government’s reach into the states’ purview increases.

Federalist 45 reminds us of what our country could look like, had the checks and balances laid out by the founders not been slowly eroded. For many years, “We the people,” have not been paying attention.

As we go forward, we should remember Hamilton’s words in Federalist No. 33:

What a gift these words of Hamilton, Madison and John Jay are, patiently explaining the United States Constitution, and our founders’ vision for our country! We cannot understand what we are losing, if we don’t understand what we had.

We cannot know if the Constitution is “injured,” if we do not know what is in the Constitution. Thank you Professor Knipprath, and all the blogger commenters, for augmenting our understanding!

As Janine likes to say, “Your vote is your voice.” In these federalist papers we are finding our voice, and in November, our voice will be heard!

Good night and God Bless,

Cathy Gillespie

Tuesday, June 29th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 45 – Janine Turner

Federalist Paper 45, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 14. Essays by Janine Turner, Federalist No. 45, Federalist No. 45

Howdy from Texas and wow, wasn’t today’s reading of Federalist Paper No. 45 a wild ride? If anyone ever suggests that the Federal government is not bigger than originally intended I will simply refer them to the following words of James Madison.

Federalist Paper No. 45.
“The powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain in the state government, 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 the times of war and danger; those of the state governments in times of peace and security.”

The above paragraph provides a mountain of evidence concerning the true intentions designated for the federal government.

Federal Government State Government
1. Powers are few and defined 1. Powers are numerous and indefinite

2. Powers are exercised principally              2. Powers extend to
on external objects, as war, peace        lives, liberties,
negotiation and FOREIGN                          and properties
commerce; power of taxation                      of the people
connected primarily only to                         and the internal
these powers                                                order, improvement and prosperity of the state.

3. Operations most extensive 3. Operations most
in times of war and danger extensive in times of peace and security

The Federal powers of today are most certainly not few and defined. They overshadow and overwhelm the state governments with many unfunded mandates and manipulations. The Federal powers have spread their presence beyond war, danger and foreign commerce. Federal powers have muscled their way into every aspect of American’s lives.

It is obvious that the true intention of regulation regarding commerce was for FOREIGN relations only. The modern day usage of the word “commerce” has been twisted into many renderings invading the states rights and rerouting the true intention of the federal governments original purpose, which was to manage and negotiate FOREIGN commerce.

The states’ powers were to extend to the areas of life, liberties, properties, internal order, improvement and prosperities.

Today’s Federal government has taken the sovereignties of the states and the individual rights of the citizens into their domain. The usurpation of state’s powers are tangible. The cast was thrown and the states hooked with the bait of benefits. The tide of control rose and never
abated. American citizen’s let it happen as they were sunbathing, napping on the beach.

The American people, however, have now awakened, and have discovered that they have been burned by the noonday sun and are drowning in the tide of commerce. They have discovered that their liberties are hooked in the “commerce” of the government.

The balm for the burn lies in the checks and balances and true intentions of the United States Constitution. The life raft of liberty lies with the passion and the purpose, the learning and the voice of the “genius of the people.”

We the People have independence bred into our blood. We have true grit written in the genetic code. We have the generational work ethic embedded in our family tree. We have the wisdom of our Providential faith that yields the prevailing power of our survival.

We, “the forgotten man,” have not been forsaken. Our Constitutional forefathers blazed the trail. We will once again set upon the path of our Constitution, which will balance our checks. The road may be rocky and the path may be steep but obstacles have never stymied the American’s spirit and it won’t now. A new turning has begun.

God Bless,

Janine Turner

Tuesday, June 29th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 45 – The Alleged Danger From the Powers of the Union to the State Governments Considered, For the Independent Journal (Madison)

Federalist Paper 45, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 45, Joerg W. Knipprath

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Having examined various powers granted to Congress, Madison in Federalist 45 invites the audience to step back from the particular tiles to gaze at the whole mosaic of the Constitution. But, is he presenting the creation from a proper angle? Or, is the Constitution modern art, where the meaning is created by the viewer? One certainly gets that sense reading some Supreme Court justices’ opinions.

Madison’s conclusion that even the mass of federal powers will not be dangerous to the authority left in the several states is astonishing from our vantage in the light of experience, but understandable from his. He discounts “the supposition, that the operation of the federal government will by degrees prove fatal to the state governments….I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first….” He grounds his judgment on four supports, loyalty from the people to the more local government; states as critical constituent parts of the national government but not the reverse; fewer federal bureaucrats than state officials; and the limited number and scope of federal powers.

As to the first, loyalty to local government may indeed be more natural. But such loyalty depends on personal relationships and bonds of community, a concept that has limits. In the 1790 census, the largest city, New York, had 33,000 inhabitants. There were only five cities with more than 10,000 inhabitants. Today, the average Congressional district has nearly 700,000 residents, almost the 1790 population of Virginia, by far the largest state then. Under classic republicanism, the size of political community is a key factor for its success. Aristotle postulated that the citizens “be of such a number that they know each other’s personal qualities and thus can elect their officials and judge their fellows in a court of law sensibly.” Plato fixed the ideal number of citizens at 5040 adult males, or about 30,000 to 50,000 residents if women, children, aliens, and slaves are included. Perhaps not coincidentally, the Constitution fixed the initial size of Congressional districts at 30,000 residents, a number that Federalist 57 asserts would produce about five or six thousand voters.

When today’s average state assembly district in California is larger than all but one of the states in the union in 1790, the notion of community with its interacting social, religious, economic, and political relationships has long since been stretched beyond reality. Basing loyalty to governments, local or national, on distinctions between current orders of representational magnitude is doomed to fail. They lie beyond the easy grasp of human comprehension. Everyone understands the difference between ten dollars and a thousand dollars. But the difference between ten billion and a trillion dollars is the difference between a lot and a lot more, too abstract to be meaningful, though the difference in each set between the larger and the smaller amount is of the same order of magnitude. Distinctions of loyalty to government on that scale become impossible, too, at least in the sense of the civic republicanism that Madison treasures. Loyalty becomes an abstraction, not a republican reality that affects our concrete actions.

Regarding the second point, the states indeed are critical components of the federal structure but not vice versa, just as he describes (excepting the election of Senators). But there is a great difference between the formal structure and the political reality. The Framers failed to anticipate the growth of modern political parties. Those parties have taken on much of the role Madison assigns to the states in influencing the selection of federal officials. Thus, the latter are far more independent of state officials than Madison asserts.

Conversely, it is true that the federal government has no direct formal role in the selection of local officials, though the Supreme Court’s reapportionment decisions and U.S. Department of Justice supervision of local elections under the Voting Rights Act throw even that in doubt. As a matter of policy, however, state and local officials are increasingly dependent on federal officials and agencies. One need only recall, among many examples, the state officials deploying, hat in hand, to Washington for federal money to cover state budget deficits (caused in part by heavy federal taxation that dries up sources for state revenues); the aftermath of Hurricane Katrina where state and local officials waited, figuratively paralyzed, for federal rescue; and California state officials’ generally unsuccessful pleading with members of Congress and federal agencies to divert enough water from protecting the habitat of the Delta Smelt bait fish to allow tens of thousands of farmers to make a living.

Not much need be said about Madison’s point that the far lower number of federal officials than state or local officials would preserve greater influence for the latter. It is particularly unfortunate that he seeks to assure the reader by stating that for every federal tax collector in a district there would be thirty or forty state bureaucrats. Judged by the size of government budgets as a portion of Gross Domestic Product, it is true that the state and local governments take up nearly as much as does the national government. But all have metastasized, with state and local spending in the last century going from 5% to 20% of GDP, and federal outlays increasing by an order of magnitude from 2.5% to 25%. This looks more like the “multitude of New Offices” created, and the “swarms of Officers [sent] to harass our people and eat out their substance,” about which Americans fulminated against King George in the Declaration of Independence.

Madison’s final point about the respective functions of the different governments also has not turned out as envisioned. True, the federal government still attends to the matters he describes, and the states control most ordinary matters that affect people’s lives. The rub is in the ever more intrusive role the federal government is assuming in matters that also affect one’s daily life. The health care reform debate, the news reports about the parlous fiscal state of numerous other social programs, and the parade of additional planned regulations, are too vivid and recent to require recounting in detail.

Madison is too serious a political thinker to be accused of flimflam. Though one has one’s doubts about Hamilton, most Federalists likely believed genuinely that the opponents were unduly alarmist in their visions of an increasingly dominant national government. Regrettably, political history, especially during the last eighty years, has not placed the constitutional mosaic laid out in Federalist 45 in a flattering light.

Tuesday, June 29th, 2010

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. Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums. His website is http://www.tokenconservative.com.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 46 – Cathy Gillespie

Federalist Paper 46, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 45, Federalist No. 46, Federalist No. 46

Federalist No. 46 – The Influence of the State and Federal Governments Compared – How is this relevant today?

Tomorrow, Virginia Attorney General Ken Cuccinelli will appear before U.S. District Court Judge Henry E. Hudson to argue against lawyers from the Obama Administration, who have filed a motion to dismiss Virginia’s challenge to the recently passed healthcare bill.

Cuccinelli will argue that the provision that forces citizens to purchase health insurance by 2014 or pay a fine, is in violation of the Commerce Clause of the U.S. Constitution, because it compels citizens to engage in commerce.

Virginia recently passed a law stating that Virginians do not have to purchase health insurance. Florida has filed a lawsuit similar to Virginia’s, and over 20 states have joined.

Cuccinelli is quoted in today’s Richmond Times Dispatch as follows, “”The Commerce Clause [of the U.S. Constitution] does not give the federal government the power to order you to buy a product. We’re fighting to protect liberty as best as we can.”

The Richmond Times Dispatch article goes on to quote Governor McDonnell as saying that the healthcare legislation would cost Virginia an additional $1.5 billion in health care costs by 2022. One of the primary cost factors is the expansion of Medicaid.

As Madison predicted:

“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.”

And:

“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.”

Throughout the Federalist Papers, the above themes surface again and again. The ultimate authority of the government derives from the people. If the federal government oversteps its bounds, the people will sound the alarm, and the states will rise to defend their rights.

For many years, and for various reasons the people and the states have let the federal government slowly encroach. But the people are awake, and are awakening the states. The alarm is sounding.

Tomorrow, Cuccinelli’s court appearance is an important step in guiding our country back to the path of liberty, and back to the constitutional structure envisioned by our founding fathers.

AND Thank you to David Kopel! I LOVED the breakdown of how many state, federal, local employees there are, and how many military! Last night when I read Madison’s statement in Federalist 45 that fewer people will be federal employees than state employees, I immediately began trying to find those numbers, and finally gave up, because it was so late. I was happy to read your essay this morning and see that you had them.

Thank you to all those who commented today, and thank you to our founder and co-chair Janine Turner for her great press appearances today on Laura Ingraham and Megyn Kelly! I believe it was Chris Wallace who said Janine is spreading the word like a modern day Paul Revere. I could not think of a better description. All of you who are participating in this blog, and in the Constituting America effort are great patriots, and our founding fathers would be proud.

Good night and God Bless!

Cathy Gillespie

Thursday, July 1st, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 46 – Janine Turner

Federalist Paper 46, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 46, Federalist No. 46

Republic For Which It Stands

The states will sound the general alarm
And the people with sufficient storm
Will rally against all usurpation
That Federal forms against the norm

The genius of the people reign
And will forever be the mindful stance
Fervor will forsake the season
And be quieted by right circumstance

The Federal will know its place
And knowledge will be the armor
The people wear to venture forth
Reasoned passion is the banner

They know their rights, stand by law
The branches right all wrongs
With checks they witness righteous measures
And balance out the demigods

Hail the unity, Hail the purpose
Hail the mighty temperate pride
Raise the calling for all posterity
Deny not your inherent stride

Be the voice, be the vote
Continue your living legacy
Be the evergreen of scene
Ring true the blessed liberty

Janine Turner

Thursday, July 1st, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 46 – The Influence of the State and Federal Governments Compared, From the New York Packet (Madison)

David B. Kopel, Federalist Paper 46, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment II, Constitutional Amendment II, David B. Kopel, Federalist No. 46

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

Federalist 46 continues Madison’s arguments that the federal government could never dominate or obliterate the states. He sketches out possible scenarios of federal over-reaching, and explains why the states would prevail in every case. Addressing the worst-case scenario, Madison assures his readers that a tyrannical President with a powerful army could never impose his rule on America, because the entire American population possesses firearms.

Federalist 46 is important today because it is instructive about the right to keep and bear arms as the ultimate safeguard of civic freedom, and because of the growing trend of state resistance to the federal exercise power on intrastate activities, such as the use of medical marijuana, or other health care choices.

Madison begins by reminding readers of first principles. The federal and state governments are both servants of the same master—namely the people. Opponents of the Constitution act as if the federal and state governments were uncontrollable entities who would be at war with each other. To the contrary, both governments are mere agents of the people, who are the supreme controlling power. The people choose to use their federal and state agents for different purposes. So there is no reason to think that the people will allow their two agents to fight with each other, or to interfere with each other.

The people, who are the ultimate deciders, will be much more attached to the state governments, Madison predicts. For one thing, there will be many more state employees than federal employees. Not only the individual employees, but their family, friends, social networks, and so on, will therefore inevitably have more affection for their close-at-hand state employer than the distant, small federal government.

Madison’s prediction is still true. Beginning with New Deal, the federal government began to grow enormously, but state and local governments also grew rapidly. As of 2008-2009, there were about 3.8 million state government employees, plus 11 million local government employees. This compares to 2.8 million federal civilian employees, plus approximately 1.5 million active duty U.S. military. So today, the number of state/local employees outnumbers federal employees by about 4:1. To the extent that employment promotes loyalty, Madison remains generally right that the states have the advantage.

Then there’s practical experience. Madison reminds his readers that even when the Continental Congress was fighting the Revolutionary War, a task of supreme importance to everyone’s freedom, people generally liked their state governments better. Except for a brief period early in the war, the national government 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.”

But from Teddy Roosevelt to Barack Obama, many Presidents over the last century have worked assiduously to build an idolatrous cult of personality around themselves. Over the last century, some men—including Calvin Coolidge and Ronald Reagan–have led successful political careers by resisting proposed enlargements of federal power. But many more politicians have built careers by promising that the federal government will do ever-more in taking care of the American people as a de facto parent.

Given the advantages currently possessed the by state governments, Madison continues, the people would only transfer their loyalty to the federal government if the federal government were manifestly better and more capable. And if so, there’s nothing wrong with the people giving their confidence where it is most due. Even then, the states would have little to fear, “because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.”

The nineteen-sixties were a time when Madison’s prediction about a transfer of affections proved prescient. At the time, the federal government was indeed far more competent and vigorous, and far less corrupt, than many state governments. National trust in the federal government rose to levels never since achieved. One reason for post-sixties decline is that as the federal government has tried to do almost everything, it has become less competent at carrying out its core functions. As Madison knew, only with a certain sphere can federal power be advantageously administered.

Another power advantage of the states is that persons who are elected to serve in the federal government will still retain some disposition towards particular state and local interests. In contrast, hardly any state or local officials will have a bias to favor federal interests over state and local interests.

Absolutely true, to this very day.

Suppose one side or the other goes too far? Again, Madison writes, the advantage lies with the states. If a state is inclined to infringe on the federal sphere, the state actions would presumably be popular with the people of the state, and would immediately be carried into effect by the state government employees. The federal government would have no practical means to overcome the states, except by the use of force, which would always be viewed with reluctance.

Conversely, if the federal government goes too far, the state’s people and government would refuse to cooperate, and could obstruct federal actions. If a large, resistant state were joined by its neighbors, it would be nearly impossible for the federal government to prevail.

This analysis proved accurate for a long time. Whether in a good cause (such as resisting federal implementation of the Fugitive Slave Act) or in a bad cause (resisting the Supreme Court’s desegregation orders from Brown v. Board of Education), state governments with strong popular support have often been able to frustrate locally-unpopular exercises of federal power.

But one major change upset the Madisonian balance. In the 1936 case United States v. Butler, the Supreme Court said that Congress could use its spending powers for purposes that had nothing to do with the enumerated powers which had been granted to Congress (such as the power to raise armies, set up post offices, and so on). Accordingly, Congress quickly started doling out money to state governments.

The result was to make the state governments into de facto wards of their federal sugar daddy. Whenever Congress tugged the purse strings, the states danced.

So Southern state government resistance to school desegregation did not end because of a few instances in which the President sent in federal troops to enforce court orders. As Madison expected use of military force was still a last resort. Formal southern resistance ended when Congress’s Civil Rights Act of 1964 cut off federal education money to segregated schools. A good result, although not all subsequent federal threats of withholding money would be for such benign purposes.

What about a worst-case scenario, in which a federal tyrant attempted to use the federal standing army to impose a national dictatorship? Madison derided the possibility, since the people would never consent to the long-term build-up of a powerful military establishment. Here, Madison was correct for about a century and a half. After the Civil War and World War I, the large federal military was quickly demobilized, and the standing army shrunk to a size appropriate for a mid-level European power, or less.

But the aftermath of World War II did not go as planned. The Soviet Union, rather than becoming a global partner in peace and stability, emerged as an aggressive superpower intent on taking over wherever possible, and seeking the ultimate destruction of the United States. In the resulting Cold War, the United States by necessity grew used to a large, permanent standing army.

Madison continued his hypothetical: the largest possible federal army could not constitute more than one percent of the total population. This is indeed the size of the current federal military, counting active duty plus reserves. But with conscription, the federal army could be much larger than that. In 1945, the U.S. military constituted 6% of the total population. (8 of 132 million.) Today, that would mean a military of about 18 million.

Against this federal army, Madison said, would be essentially the entire able-bodied male population, with their own guns, and organized into militias directed by the state governments. This huge force could never be conquered by the much smaller federal army:

To these [federal soldiers] 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.

The crucial reason why America was free and Europe was not that Americans had guns and state governments. The combination of the two would be sufficient to demolish any national tyrant:

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.

Fortunately, we have never had to see whether Madison was right that a federal tyrant with a standing army could be defeated by the people. We do know that in other places (e.g., Israel fighting for independence from Great Britain in 1946-47) armed popular forces have been able to drive out very strong armies. Of course the modern availability of nuclear weapons would give an American tyrant weapons which armed civilians could never defeat. But the use of nuclear weapons against Americans might well cause an outraged U.S. military to depose the tyrant itself.

In any case, we do know that Madison was right then and now about “the advantage of being armed, which the Americans possess over the people of almost every other nation.” In the twentieth century, monsters such as Hitler, Stalin, Mao, and Pol Pot took advantage of victim disarmament in order to murder millions.

Federalist 46 also shows the error of the notion that James Madison, the author of the Second Amendment, imagined that any individual could decide that the federal government was tyrannical, and then resort to violence. To the contrary, Madison envisioned that, in the very unlikely event that forcible resistance were necessary, it would be led by the states. Federalist 46 is an important corrective to persons (including gun prohibitionists who like to conjure up extreme scenarios) who imagine that a strong interpretation of the Second Amendment must lead to the legal authorization of anti-government violence by stray individuals.

Madison has been proven correct in regarding mass national armed resistance to federal tyranny as a very unlikely possibility. He was also right in a much broader sense, in that the American system of federalism, which many powers retained by state governments, and the American gun culture, with its associated spirit of self-reliance and responsibility, have helped form the freedom-loving American national character which has prevented the federal government from degenerating into despotism.

Wednesday, June 30th, 2010

David B. Kopel is Research Director at the Independence Institute, in Colorado, and is Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law. www.davekopel.org

March 6, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 47 – Janine Turner

Federalist Paper 47, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 14. Essays by Janine Turner, Federalist No. 47, Federalist No. 47

Howdy from Texas. I thank Professor Baker for joining us today and for his wonderful essay! I also thank all of you who are joining us for our “90 in 90 = 180 History Holds the Key to the Future,” whether by reading or by blogging!

After reading Federalist Paper No. 47, I am awestruck by our Constitutional founding father’s tenacity and brilliant attention to detail. It is truly obvious that they loved their country. It is truly obvious that they loved their fellow countrymen. It is truly obvious that they knew their history and political theory. It is truly obvious that they had a reverence for the Republican form of government. It is truly obvious that they respected the “genius of the people.” (I just can’t say “genius of the people” enough times!) It is truly obvious that they feared, condemned, and yearned to triumph over tyranny. It is truly obvious they wanted the triumph to be pervasive and permanent.

Tyranny. This is an ugliness and cruelty that we have never, thanks to our Constitution, which has proven to uphold our Republican principles, had to experience. Yet, it was fresh in the hearts, minds and souls of our founding fathers and it was fresh in the spirits of the people.

The checks and balances have served us well. Tyranny has
yet to rear its ugly head, though, at times, the Constitution has been tested and continues to be tested.

After reading, Federalist Paper No. 47, I am more aware of the definitions of both the words, “checks” and “balances,” just as I am keenly becoming aware of the true meaning of “big government.”

“Checks” is obvious. The different branches must keep each other separate and accountable. “Balance” has a new meaning to me, however. The different branches must have a fluidity amongst each other. The branches must flow into the trunk to gather their nourishment from their roots.

The roots are the people and the roots need the rain. They reach across the ground in search for their nourishment. The nourishment is the knowledge, the information. Without the knowledge and information the people have no power and knowledge is power. Here is the most impressive aspect of early America, the representatives were not afraid to give the people the information. There was an honesty and transparency coupled with an intelligence and integrity.

This would answer the question of why our modern day representatives withhold so much of information, including what is in the bill and how they vote. The information is hardly transparent. But have the people demanded it? It is time we do.

I am struck by the intensity, desire and fervor with which the revolutionary citizens participated in the process. I am awed by the respect the representatives gave the citizens. They wrote 85 essays explaining a 7 page Constitution.

What do we get today?

Checks and balances are the delicate framework of our governmental structure. Yet, constituents should check their representative’s actions and balance the political process with the scales of participation and inquiries.

The republic stands on the balance beam of questions and answers for all.

God Bless,

Janine Turner

Friday, July 2nd, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 47 – Cathy Gillespie

Federalist Paper 47, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 47, Federalist No. 47

“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.”

Federalist 47 begins a fascinating discussion of separation of powers. Thank you to Dr. Baker for your insights on this essay!

“Separation of powers,” and “checks and balances,” are often used interchangeably, but as Dr. Baker pointed out, they are two distinct terms. If our government had merely separation of powers, without the checks and balances, we could fall prey to tyranny through the separate “silos” of government. There would be no impeachment process for a President who violated the law; there would be no Senate confirmation of Supreme Court or high level Administration appointments. There would be no Presidential veto of legislation passed by Congress. And there would be no rulings on the Constitutionality of legislation passed by Congress.

But “checks and balances,” mean that powers cannot be totally separated. They are shared, and that is what creates the balance. The President shares legislative power with the Congress through his veto. The Congress shares executive branch power through their participation in the confirmation process and the impeachment process. The courts share legislative power in their ability to declare legislation brought to them for adjudication as unconstitutional. The states and federal government share responsibility for amending the Constitution through the amendment ratification process. And ultimately, the people are the final check on government, through their vote.

Our founding fathers put the greatest care and thought into designing a system of government that would best ensure our liberty. The structure of our government, under the United States Constitution, is designed to hold our liberty in a delicate balance. I picture our freedom suspended carefully, amidst an intricate structure, with interlocking parts, all dependent upon the other, yet with distinct columns and blocks representing the three branches of government, the federal government, and then the states. Changes to the structure cause our liberty to “shift,” and ultimately, it begins to disappear.

As we have discussed earlier, the 17^th Amendment was a major change to the structure of our government. Other changes have happened in less obvious ways, but have had no less an impact on our liberty.

We must understand the careful structure of our government, as set forth under the Constitution, or else we will not know when the separation of powers, and the checks and balances are being disturbed. If we don’t notice when one branch usurps the powers of another, we may not notice the ensuing disappearance of our freedoms, until it is too late.

The Federalist Papers left by our founders are like an owners guide to our Constitution. They explain the Constitution, how it is constructed, why it is constructed as it is, and the historical framework they utilized to make the decisions they did. What a blessing it is that our founding fathers can speak their words of wisdom to us today, through these great papers.

Good night and God Bless,

Cathy Gillespie

Friday, July 2nd, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 47 – The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts, From the New York Packet (Madison)

Federalist Paper 47, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 09, Federalist No. 10, Federalist No. 15, Federalist No. 39, Federalist No. 47, Federalist No. 48, Federalist No. 51, Federalist No. 84, John S. Baker Jr. PhD

Guest Essayist: John S. Baker, Dale E. Bennett Professor of Law at Louisiana State University

Although mentioned in previous essays, Publius formally began to address separation of powers in Federalist # 47. Together with ## 48 and 51, #47 explained the unique understanding of that principle as built into the Constitution. The Federalists and Anti-Federalists agreed that separation of powers was essential to liberty, but disagreed on what that required in a constitution. Unfortunately, over the last century, the term “separation of powers” has almost disappeared from the civic vocabulary in the United States and been replaced by the term “checks and balances,” a term with an overlapping, but different meaning.

Federalist #47 affirmed the principle upon which the Federalists and Anti-Federalists agreed: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Thus, the Founders did not believe that voting alone guaranteed liberty.

It must come as a surprise to many Americans to learn that the Federalists and Anti-Federalists emphasized separation of powers as an absolutely essential guarantee of liberty. For many — if not most – Americans, the protection of liberty is primarily accomplished through the Bill of Rights. The Federalist and Anti-Federalists agreed on the need for separation of powers, but not for a bill of rights. The Anti-Federalists criticized the proposed Constitution for a lack of a bill of rights, but the Federalists actually contended “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.” Federalist #84.

Instead of mere “parchment barriers,” i.e. paper protections, the Framers presented a “well constructed Union.” Federalist ## 10 and 39 laid out the plan and purpose of the extended, (con)federal republic. Without separation of powers, however, that structure would have been insufficient to prevent the consolidation of power in the central government. Both parts of the structure came under attack as contrary to fundamental principles of liberty. In #39, Publius admitted that if the plan of the Constitution actually did depart from the republican principle, it would be indefensible. He did likewise in #47, admitting that if the Constitution ”really [were] chargeable with this dangerous tendency to such an accumulation, 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.”.

For separation of powers, as for the extended confederate republic, see Federalist # 9, Montesquieu was the authority appealed to by both Federalists and Anti-Federalists. As with the extended (con)federal republic, Publius explained in # 47 that the claim that the Constitution violates the principle of separation of powers is mistaken. Montesquieu relied on his understanding of the British Constitution to explain separation of powers. Publius correctly observed that in the British Constitution “the legislative, executive, and judiciary departments, are by no means totally separate and distinct from each other.” Indeed, the British Constitution actually involved a “checks and balances” system, rather than one of separation of powers as understood by both the Federalists and Anti-Federalists. That is to say, separation of powers as understood by Montesquieu and the Founders included a separate, co-equal judiciary. Under the British (unwritten) Constitution, the judiciary has never been a separate, co-equal branch of government. Rather, at the time of our Founding, the British government involved a traditional governing system in which the one (the king), the few (the House of Lords), and the many (the House of Commons) checked and balanced each other.

Publius concluded that Montesquieu “did not mean that these departments ought to have no partial agency or no control over the acts of each other.” (emphasis in the original) Rather, he said Montesquieu’s meaning “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.” (emphasis in the original). He demonstrated the point by examining aspects of the British constitution, Montesquieu’s model.

Publius then considered the state constitutions. He noted “that, notwithstanding the emphatical, and 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.” He addressed the constitutions of all but two of the states and quoted the “emphatical” language from a couple of them. While looking at the state constitutions in order to rebut the charge that the proposed Constitution violates separation of powers, Publius was not indicating that the state constitutions are an appropriate model for the new Constitution.

The last paragraph of #47 opened, stating “I wish not to be regarded as an advocate for the particular organizations of the several state governments.” Indeed, the Framers created a government radically different from that of the state constitutions. In part, the differences were due to the fact of the federal constitution being one of limited powers, while the state constitutions have more general powers. In addition, however, the form of separation of powers in the federal Constitution differed significantly from that of the states.

In distancing himself from the state constitutions, Publius attempted to avoid giving offense by first offering a modicum of praise and an excuse for their deficiencies. (“I am fully aware, that among the many excellent principles which they exemplify, they carry the strong marks of the haste, and still stronger of the inexperience, under which they were framed.). Nevertheless, Publius was clear that the state constitutions provided for separation of powers “on paper,” but not “in practice.” (“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 in no instance has a competent provision been made for maintaining in practice the separation delineated on paper.”)

Thursday, July 1st, 2010

Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 48 & Federalist No. 49 – Janine Turner

Federalist Paper 48, Federalist Paper 49, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 48, Federalist No. 48, Federalist No. 49, Federalist No. 49

WOW. It’s REALLY getting good now isn’t it? Howdy from hot Texas! I have a billions dog ears and stickies on Federalist Papers 48 & 49!

I want to thank Professor John S. Baker and Professor Colleen Sheehan for their insightful essays and I also want to thank all of our Professors and Scholars who have dedicated their time, talents and energies to inform and educate us about our United States Constitution and Federalist Papers. Each and every one of you are great Patriots!

In Federalist Paper No. 48 it was refreshing to have Thomas Jefferson enter the dialogue. Understanding our Constitutional Founding Father’s vision and true intent of the Branches of Government is powerful. The separation of the branches of government coupled with the need for fluidity is a timeless lesson learned.

A prerequisite for all elected officials and civil servants should be to read, or reread, the United States Constitution and the Federalist Papers. I wonder, if a poll were to be taken today, how many of our elected officials and civil servants have read the Constitution and better yet, the Federalist Papers? Would that not be revealing? They swear to preserve, protect and defend the Constitution. Should they not understand it? It is TRULY represent the dismal state of our country that so few really read, understand and revere the United States Constitution.

We, as the informed voice of our country, shall make noise and make sure that our elected officials read these documents, yes? Our vote is our voice!

I love how James Madison describes the American people in Federalist Paper No. 49, “The people are the only legitimate fountain of power.”

The entire paragraph in Federalist Paper No. 49, in its entirety, reads with equal revelation:

“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 government; but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.”

Should Vice-President Biden reread these words and perhaps think again or at the very least, hold his tongue, when one of “the people” asks about lowering taxes? To respond to the owner of the custard shop that he, the owner, should not “be a smartass” is certainly not worthy of an American leader or representative of a respect for the people who are the “legitimate fountain of power.”

What I find to be the absolute joy in reading and studying these papers is that my inner instincts as an American, my gut, are finding validity. Now my voice is rooted in the wisdom, facts and quotes of the United States Constitution and the Federalist Papers.

Before closing, I want to mention one other paragraph that rings in relevancy: Federalist Paper No. 48.

“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.”

ISN’T THIS AMAZING? Please spread the words of these quotes from Federalist Paper No. 48, regarding the PUBLIC’S RIGHT TO READ THE BILLS and Federalist Paper No. 49 regarding THE PEOPLE ARE THE ONLY LEGITIMATE FOUNTAIN OF POWER.

Knowledge is to power what action is to results.

God Bless,

Janine Turner

Monday, July 5th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 48 – Cathy Gillespie

Federalist Paper 48, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 33, Federalist No. 46, Federalist No. 48, Federalist No. 48

It is essays such as Federalist 48 that validate Thomas Jefferson’s famous quote about the Federalist Papers, “the best commentary on the principles of government … ever written.”

The checks and balances of our government, so beautifully constructed by the founders, are based on this axiom from Federalist No. 48:

“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.”

Our founding fathers knew that separating powers into three branches of government was not enough to ensure the liberty of the people. Without “checks,” any one branch could become tyrannical.

It is ironic that the best way to accomplish separation of powers is to not completely separate the powers, but for the three branches to “share” some aspects of the powers, in order to wield checks on each other.

It is also ironic that the legislative branch, the branch closest to the people (at least the U.S. House), is also the branch most likely to overstep its bounds. The quotes in Federalist No. 48 about the legislative branch could easily have been written this year, as in 1878.

“The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.”

“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.”

“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.”

“One hundred and seventy-three despots would surely be as oppressive as one.”

Madison points out the many reasons why legislative branches are prone to usurpations of power:

1. “Legislative power is exercised by an assembly,” …… with an intrepid confidence in its own strength.”

2. There are enough members of the legislative body to “feel all the passions which actuate a multitude,” yet few enough to actually act on those passions.

3. “Its constitutional powers being at once more extensive, and less susceptible of precise limits,” allow it to mask with greater ease “under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” (The “Commerce Clause,” and the “Necessary and Proper Clause,” are perfect examples in our federal legislative branch of the “more extensive, and less susceptible of precise limits,” of which Madison speaks)

4. The legislative department has the power to tax (“access to the pockets of the people”).

5. The legislative branch has some influence over the wages of those who fill the federal government jobs (“pecuniary rewards”), and controls the budgets of the departments and agencies.

The founders knew the predisposition of the legislative body, and thus built in checks on legislative power. One of the most important checks they devised was the appointment of U.S. Senators by the State Legislatures. The removal of that “check” by the ratification of the 17^th Amendment caused a disturbance in the balance of power, and allowed the Congress to encroach past its enumerated powers further than the founders ever dreamed possible.

In a blog comment on Federalist 46 today, Andrew points out an important truth:

“A key point most posters missed and that was not really addressed in the essay is that it still was voters who have approved of the expansion of the federal government. Voters elected congressmen and presidents who supported the expansion of the federal government. Most are reelected, and there is rarely any movement to undo expansions because those expansions are popular with the majority.”

Andrew is correct. “We The People” allowed the checks and balances to break down. It is “We The People,” who are charged time and again with sounding the alarm and protecting the Constitution.

In order to protect the Constitution, and keep government in check, we must first know the Constitution and understand the principles upon which it was based.

Thank you all for a wonderful week of blog comments, and a big thank you to Professor Baker for his enlightening essay! Federalist 48 is one of my favorite papers yet.

Looking forward to Federalist 49!

Wishing you all a wonderful July 4 weekend as we celebrate the birth our country!

Good night and God Bless,

Cathy Gillespie

Saturday, July 3rd, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 48 – These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other, From the New York Packet (Madison)

Federalist Paper 48, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Federalist No. 48, John S. Baker Jr. PhD

Guest Essayist: John S. Baker, Jr. the Dale E. Bennett Professor of Law at Louisiana State University

The states had strict separation of powers in theory, but a dangerous mixture of powers in practice. Taking the opposite approach, Publius undertook “to show, that unless these departments be so far connected and blended, as to give 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.” Theory guided writing of the Constitution; but the text itself is a practical — not a theoretical — document. As Federalist #48 states, “After discriminating, therefore, in theory, the several classes of power, as they may be in their nature be legislative, executive, or judiciary; the next, and most difficult task, is to provided some practical security for each, against the invasion of the others.”

The Constitution does not even mention the term “separation of powers.” Rather, the constitutional text formally establishes separation of powers by setting out the powers of each branch in a separate article: Article I (“All legislative Powers herein granted shall be vested in a Congress”); Article II (“The executive Power shall be vested in a President”); and Article III ( “The judicial Power of the United States, shall be vested in one supreme Court and such inferior Courts as Congress may from time to time ordain and establish.”). Omitting the term “separation of powers,” into which different persons — especially lawyers — might pour their own meanings, the Constitution instead implants into the text the elements of separation of powers necessary to make it operate in practice, e.g. the President’s qualified veto power.

Rather than “the parchment barriers” on which the state constitutions “principally relied,” the Framers consulted experience and concluded “that some more adequate defence is indispensably necessary for the more feeble, against the more powerful members of the government.” In other words, because the three branches are not naturally equal, simply separating them will not protect the weaker branches. Experience has shown that the legislative branch will dominate the other two. According to Publius, “The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.” It may seem surprising to many Americans that the Framers considered the legislative branch to be the most dangerous. Such an attitude is nothing new because it was prevalent at the time of the Constitution’s adoption. As Publius observed, “founders of our republics,,,,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.”

Then and today, there are those who view the President as the greatest danger to liberty. “But in a representative republic,” Publius writes, “the executive magistracy is carefully limited, both in the extent and duration of its power.” Compared to Congress, the President may appear to be more powerful due to the unitary character of the Presidency. Later, in Federalist 70, 73, and 74, Publius explains the unitary executive as a protection of the liberty, particularly in time of war.

Publius tells us “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 jeolousy, and exhaust all their precaustions.. (emphasis added).

If today the President seems to have more power than the Constitution, it can only be because the Congress has delegated that power and, in most instances, the Supreme Court has upheld those delegations. Since the 1930’s, the three branches of the federal government have generally cooperated in building “the Administrative State,” dominated by bureaucratic agencies. While apparently building the President’s power, however, the Congress has 1) avoided accountability and 2) disguised in its de facto influence over executive agencies. Driving this consolidation of power is an opposition to separation of powers.

The Administrative State incorporates certain “checks and balances,” which as discussed in the last essay differs from separation of powers. Federalist #9, which refers to “legislative balances and checks,” indicates that the term “checks and balances” has a different historical meaning. The Constitution’s version of separation of powers does include a checking function of each branch on the other. Federalist 48 explains the concern to give checking powers to the weaker branches, i.e., the President and the Judiciary. The Administrative State has grown because the Supreme Court has approved legislation giving Congress additional checking powers against the President, thereby weakening the Executive Branch. Congress, for example, has created so-called “independent agencies,” which are independent of the President’s control, but under the de facto control of Congress’s power over agency budgets.

Congress’s enhancement of its own powers through the Administrative State confirms the observations in Federalist 48 about the deviousness of legislative bodies. “The legislative department derives a superiority in our governments [because] [i]ts 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.” (emphasis added).

Publius’s indictment of legislative bodies drew “on our own experience.” The Virginia constitution, for example, required separation of powers; but as Jefferson wrote in his “Notes on the state of Virginia,” quoted by Federalist 48, “no barrier was provided between these several powers.” Publius approved Jefferson’s remark that “An elective despotism was not the government we fought for.”

Federalist 48 concluded “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.”

Friday, July 2nd, 2010

John S. Baker, Jr. is the Dale E. Bennett Professor of Law at Louisiana State University.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 49 & Federalist No. 50 – Cathy Gillespie

Federalist Paper 49, Federalist Paper 50, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Article V, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 43, Federalist No. 49, Federalist No. 49, Federalist No. 50, Federalist No. 50

Greetings from Mt. Vernon, Virginia where we are busily sorting, copying, downloading and uploading We The People 9.17 Contest entries for our judges! It is inspiring to see the hard work, creativity, and talent of young people across our Nation, all pondering and expressing “How the United States Constitution is Relevant Today!”

These young people give Janine and me hope, because they are the future “genius of the people,” the “fountain of power,” alluded to in Federalist No. 49. Every student who sat and thought about the U.S. Constitution in order to compose a song, write and direct a short film or PSA, write an essay or poem, or draw an illustration, is a young person who is now more aware of our country’s founding principles, and more knowledgeable about the U.S. Constitution.

Federalist No. 49 and No. 50 make arguments against engaging the people too often on the very serious task of amending the U.S. Constitution. In Federalist 49, Publius takes on the idea of calling a Constitutional Convention whenever one of the branches of government oversteps its bounds, and Federalist No. 50 argues against periodic, set and scheduled Constitutional Conventions.

It is argued in both papers that having the people too regularly and directly involved in changing the Constitution will cause passions to rule over reason. Although the arguments in Federalist 49 and 50 against an Amendment process that was too open and subject to the political whims of the day are fascinating, I find it even more fascinating to explore the founders’ final result: Article V of the Constitution.

The amendment process that resulted, is, like the rest of the Constitution, a marvel of design in checks and balances between state and federal power:

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.”

Either Congress (through a 2/3’s vote in both Houses) or the States (through 2/3’s of the State Legislatures calling for a convention) may initiate the Amendment Process.

To actually ratify the proposed Amendment, three-fourths of the States must approve, either through their State Legislatures, or by State Conventions, but it is interesting to note that the mode of ratification to be utilized is directed by Congress.

The beauty of the amendment process, as Madison described in Federalist 43 is:

“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.”

In practice, what is our country’s history of amending the Constitution? Has it worked out as well as Madison intended and predicted?

I found some fascinating answers in The Heritage Guide to the Constitution, pages 284-286 in an essay by Dr. Matthew Spalding and Trent England:

5,000 bills proposing to amend the Constitution have been introduced in Congress since 1789.

Of those 5,000 bills, only 33 amendments have been sent to the States for ratification.

The states have never succeeded in calling for a constitutional convention, although some of the attempts have gotten very close – within one or two states of the required 2/3’s.

Those supporting the 17^th Amendment got very close, and were lacking only one state in their constitutional convention effort when Congress proposed the 17^th Amendment.

Currently, there are 27 Amendments to the Constitution, the last one passed in 1992. Interestingly, this Amendment, the Congressional Compensation Amendment, was first proposed by James Madison in 1789!

The amount of amendments proposed versus amendments ratified, and the most recent amendment, which essentially took 200 years to pass, are examples that our Founding Fathers designed a process that met their goal of a process that was “neither too mutable,” nor fraught with “extreme difficulty.”

The amendments to our United States Constitution read like a history of our country. Each one stands for a struggle, a herculean effort of the people to “form a more perfect union.” Some took hundreds of years, others took less, but all were thoroughly considered and debated. And, interestingly, the longest amendment to the Constitution, textually, by my calculations, is the 14^th Amendment, which at 434 words is shorter than most of these essays!

Looking forward to today’s comments on Federalist No. 51, one of my favorite Federalist Papers!

Your Fellow Patriot,

Cathy Gillespie

Tuesday, July 6th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 48 & Federalist No. 49 – Janine Turner

WOW. It’s REALLY getting good now isn’t it? Howdy from hot Texas! I have a billions dog ears and stickies on Federalist Papers 48 & 49!

We, as the informed voice of our country, shall make noise and make sure that our elected officials read these documents, yes? Our vote is our voice!

I love how James Madison describes the American people in Federalist Paper No. 49, “The people are the only legitimate fountain of power.”

The entire paragraph in Federalist Paper No. 49, in its entirety, reads with equal revelation:

Before closing, I want to mention one other paragraph that rings in relevancy: Federalist Paper No. 48.

Knowledge is to power what action is to results.

God Bless,

Janine Turner

Monday, July 5th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 49 – 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 (Madison)

Colleen Sheehan, Federalist Paper 49, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Colleen Sheehan, Federalist No. 49, Federalist No. 57

Guest Essayist: Colleen Sheehan, Professor of Political Science at Villanova University and Director of the Matthew J. Ryan Center for the Study of Free Institutions and the Public Good

James Madison wrote Federalist 49 in part as a response to Thomas Jefferson’s idea that a constitutional convention should be called whenever one of the departments of government oversteps its delegated constitutional authority.

Madison argued that this was a bad idea for five reasons: 1) the proposal doesn’t cover the case in which two departments combine against a third 2) routinely involving the people in rewriting the Constitution would reduce the veneration the citizens have for their laws and government, thereby destabilizing the polity 3) frequent appeals to the people’s fundamental authority would excite their passions and disturb public tranquility 4) if the usurpation of power was instigated by the legislative branch (which is the most likely scenario), it is probably these same men who would be elected by the people to the convention, since they are the public figures most familiar to the people – that is, they have the best name recognition and the most influence, which is how they got elected in the first place 5) if the people didn’t choose their legislators to attend the convention – perhaps because the usurpation of power by some of them was so flagrant – the choice of convention delegates would nonetheless be conducted in a turbulent atmosphere of partisan politics.

In the last case, Madison argued, it would be “the passions, therefore, not the reason, of the public [that] would sit in judgment.” But this is the exact opposite of how good popular government should work. According to Madison, in a well-constructed republic the passions of the public will be controlled and regulated by the government; in turn, the government will be controlled and regulated by the reason of the public.

It is important not to misconstrue Madison’s argument against frequent appeals to the people in this essay. He opposed frequent appeals to the people in their most sovereign capacity – which is what constitutional conventions represent. His claim is that convening a convention to change the Constitution every time there is an abuse of power by politicians is not the best or even, generally, a smart solution. Given that Madison was already a seasoned political leader (albeit only 36 years old) and a realist about human nature, he knew that this would mean a lot of conventions! He also knew that asking the people to reconsider and revise fundamental law on a chronic basis would agitate and destabilize public opinion, which is the very foundation of government and the effective rule of law.

It is important to note that Madison did not argue for a blanket rejection of an appeal to the fundamental authority of the people; indeed, he insisted that a path to constitutional change must be kept open to the people, to be tread on extraordinary occasions. This is of course the purpose of Article V of the U.S. Constitution, which establishes the constitutional amendment process. Moreover, his discussion of reverence for the laws should not be interpreted to mean that the people ought to venerate rather than vigilantly watch over their government. In fact, in Federalist 57 he will stress the importance of the vigilant spirit of the people in restraining government and safeguarding liberty. In the 49^th essay, however, Madison is warning his fellow citizens that we should not be unrealistic about the sway of reason in politics. Since most people are not disinterested or dispassionate philosophers, he implies here what he teaches throughout The Federalist: the achievement of reasonable and just public decisions is going to take substantial time and the hard work of communication and public deliberation. Essentially, Madison is saying, let’s be careful not to circumvent these speed bumps, which are constructed for our own safety. Let’s not be impetuous and race headlong at a dangerous pace. Slow and steady wins the republican race.

Colleen Sheehan is Professor of Political Science at Villanova University and Director of the Matthew J. Ryan Center for the Study of Free Institutions and the Public Good.

Monday, July 5th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 49 & Federalist No. 50 – Cathy Gillespie

Federalist Paper 49, Federalist Paper 50, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 49, Federalist No. 50