Guest Essayist: Brad Bergford

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The State of Oregon has a fascinating history from the early competing claims to the land by Spain and Great Britain to the “54° 40′ or Fight” slogan of the Democrat Party during the 1844 presidential campaign, whereby Democrats pledged to gain the territory one way or the other, to the naming of its largest city by a 2-3 coin toss. Lewis and Clark famously made their way to the Oregon coast in 1805 while searching for a northwest passage. In 1818, the U.S. and Great Britain agreed to jointly occupy the region, which included portions of present-day Idaho, California, Montana, British Columbia, and all of Washington state. In 1840, the U.S. gained the territory through the Oregon Treaty, and settlers began to arrive via the Oregon Trail. The state’s establishment as the 33rd state in 1859 realized many, but not all, of the founding principles of the United States. For example, European settlers forced many native peoples to relocate via a 1,500 mile march to Oklahoma.

From the beginning, Oregon placed a high value on social discourse, which may have helped it to (mostly) claw out of the deeply-entrenched racism that was a hallmark of its early history. In 1844, Oregon Country, as it was called until 1859, ordered all blacks to vacate under threat of beatings to include “not less than twenty nor more than thirty-nine stripes” every six months until the violator left.[1] In November of 1857, the year of the Oregon Constitutional Convention, voters approved Article XVII—a clause that prohibited blacks from immigrating to the state of Oregon.[2] And, when Oregon became a state, it specifically forbade black people to live in Oregon. In 1866, Oregon narrowly ratified the 14th Amendment but upon taking control of the legislature in 1868, Democrats promptly rescinded Oregon’s ratification of that Amendment. The move was symbolic at that point, but it provides a window to the state’s post-Reconstruction foundation.

Even amid its racism, as seen in section 31 of the Oregon state constitution’s Bill of Rights, freedom of religion was enshrined in Oregon’s constitution, and this may have been the state’s saving grace in more ways than one. The second, third, fourth, fifth, and sixth, sections in Oregon’s State Bill of Rights protect the freedom of religion in various ways, and the seventh indirectly encourages the use of the religious beliefs of court witnesses to ensure honest testimony and, thereby, protect society. Notably, the second section provides that “[a]ll men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.” The Oregon Bill of Rights officially prohibited slavery, but it also contained three exclusion laws, which voters approved by wide margins and which operated to keep non-whites out of Oregon until those laws were repealed in the early 1900s.[3]  Oregon was the only “free” state admitted to the Union with exclusion laws in its constitution.

During the 20th century, Oregon was mostly a “red” state.  In fact, Republican presidential candidates carried Oregon in all but a few instances until 1984 when Oregon turned “blue” and has been so ever since. Today, Oregon is addressing many of the same issues with which other states grapple. The so-called “climate change” controversy has led to particularly coarse rancor between Oregon Democrats and Republicans, and it has provided the fodder for the vigorous debate of a cap-and-trade measure that failed in July 2019. The failed proposal was in the works for at least a decade and was premised on the controversial notions that 1) the earth is warming, 2) mankind is responsible, and 3) mankind can fix it. The cap-and-trade proposal would have placed new taxes in some instances and increased taxes in other instances on key industries that proponents believe contribute to anthropogenic global warming. The increased expenses would have caused job losses and increased consumer prices, among other effects, which would have adversely affected families across the state. On the other hand, proponents believe that the increased prices would lead to a reduction in global warming. Drug use and homelessness plague Oregon’s larger cities, and those who advocate for legalized drug use, which many believe leads to homelessness, are pitted against those who seek a safe and orderly society. That Oregon has no sales tax draws purchasers from neighboring states, and Oregon voters have capped property taxes which attracts people to live there.

The state motto is Alis Volat Propriis (She flies with her own wings). Indeed, Oregon has much going for her, not the least of which is a willingness to do things her own way. Oregon is a beautiful state complete with beaches, mountains, agriculture, industry, and recreational opportunities. Oregon’s largest industry is manufacturing, and primary among that industry are forest products, high technology, food processing, and metals.[4] Technology-related industries are expanding rapidly. Some notable historical figures have called Oregon “home” including suffragist Abigail Scott Duniway; explorer and navigator, Robert Gray; Nez Perce leader, Chief Joseph; writer, Raymond Carver; and famed chemist, Linus Pauling.

Brad Bergford earned his BA in Political Science and Pre-Law at the University of Colorado at Colorado Springs. He earned his juris doctorate from the University of Denver, where he was active in several student bar associations, including the Student Trial Lawyers Association, the Federalist Society, and Christian Legal Society, which he served as President. After law school, Brad clerked for the Honorable Philip McNulty where he authored court opinions in a number of cases on subjects ranging from family law to constitutional law. Brad is Chief Executive Officer of Colorado Family Action/CFA Foundation, and he has his own civil litigation practice, which focuses on constitutional issues. Brad is an Alliance Defending Freedom Blackstone Fellow and Allied Attorney, and he serves as President of National Lawyers Association’s Colorado chapter.

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[1] Brown, J. Henry (1892). Brown’s Political History of Oregon: Provisional Government. Portland: Wiley B. Allen. LCCN rc01000356. OCLC 422191413. Pages 132–135.

[2] https://oregonencyclopedia.org/articles/exclusion_laws/#.XVsaeXdFzuh

[3] https://oregonencyclopedia.org/articles/exclusion_laws/#.XV3DUFB7nOQ

[4] http://www.theus50.com/oregon/information.php

Guest Essayist: Nicholas Jacobs

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Intergovernmental Competition: Are we in a “Race to the Bottom”?

Grants are just one way of transferring money and there are alternative financial arrangements that better meet the standards of joint-influence and joint-benefit, such as GRS. Rarely is it the case that the specific goals outlined by narrow grant programs perfectly meet the needs or desires of a state community. And, the costs of administering a grant seldom justify the federal government’s insistence that states participate. It is often overlooked that states could simply fund the government program themselves, without federal oversight or administrative duplication, if enough political will existed within the state community for that service.

Nevertheless, we should first recognize that the federal government might have certain advantages when it comes to taxing and spending, which helps to justify the need for any intergovernmental cooperation at all. The states do not exist independent of one another, and an important principle outlined in the last essay was that the taxing and spending decisions reached by one state government necessarily affect the fiscal capabilities of all the other states.

In the best case scenario, this has huge advantages for a diverse national community. People get to choose what their states look like, and they can exercise an important check on state governments that tax and spend the peoples’ money unjustly: they can leave!

States, therefore, compete with one another for residents, for business, and ultimately, for tax dollars. And those competitive pressures incentivize state and local governing officials to provide the best government for the lowest cost.

Yet, sometimes that competition has negative effects — what political economists might label a “negative externality.” When the savings created by one state’s actions impose costs on other political communities, competition produces inefficiencies. This is best illustrated by state variation in how much is spent on environmental regulation and clean-up. States that are literally “up-river” can exact exorbitant costs on other states through their inaction. Likewise, in trying to attract business to their state, one state might dismantle regulations placed on corporations; neighboring states might follow suit in order to keep business from leaving. State-level variation and competition might, in other words, work against certain national goals, creating a “race to the bottom” where states undercut one another to create advantages in the short-term, but impose long-term costs on the national political community.

Such is the rationale for the single largest intergovernmental program in the United States: Medicaid. The provisioning of Medicaid reflects a national goal (healthcare for the poor) and is structured so as to reduce the degree of competition between states in administering benefits. Almost a third of all state spending goes towards Medicaid payments, and that number is increasing; 20 percent of funding is raised solely by the states, up from just 9-percent in 1990. The federal government dictates minimum eligibility requirements, but each state is left free to fund the program to desired levels and set additional requirements on recipients and providers of Medicaid services. The 2010 Affordable Care Act — “Obamacare” — would have required states to enroll citizens who made up to 133% of the federal poverty line, but the Supreme Court struck down mandatory expansion, which reinforced the joint-nature of the program.[1] As of early 2019, only 36 states have expanded Medicaid as a result. Moreover, under the Trump administration, a number of states have experimented with requiring work requirements for eligible participants. The federal courts have struck down three states’ efforts, but it is an open legal battle over just how flexible Medicaid will remain, as it consumes a larger portion of state budgets.[2]

Fiscal Independence: Should we Blame the States?

No doubt some readers, in thinking through the examples about the “race to the bottom” might view such competition as a healthy impulse: it has the high potential to limit environmental regulation and corporate taxation, for instance. One man’s race to the bottom is another man’s dream of limited government.

However, American political history suggests that, in the long run, rather than maintaining a de-regulated system of limited government, excessive competition between the states has provided the federal government an enduring rationale to step in and impose requirements on a national level, with little involvement from the states or cities. Hamilton warned of this possibility in 1789, writing that while “the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union,” this would only be the case “unless the force of that principle should be destroyed by a much better administration of the latter [federal government].”[3]

The logic of concurrent taxation and the promise of intergovernmental competition should make us reconsider one of the dominant strategies promoted by proponents of limited government in the 20th century: tax restrictions within state constitutions.

As discussed in the previous essay, citizens of the various states have long turned to their own state constitutions to regulate the public coffers, often saving future generations from unmanageable levels of government debt. In 1978, voters in California continued this tradition and passed Proposition 13 — a citizen-led ballot initiative that placed hard restrictions on the ability to increase property tax rates and reassess the value of commercial and residential real estate.

On the one hand, such restrictions have forced government officials to scrimp, save, and justify every expense, particularly at the local level, and often to the benefit of the taxpayer. In this regard, the “tax revolt” unearthed by Proposition 13 worked. In 1976, Californians had the sixth-highest “tax burden” in the country, at 12.2-percent — a measure of how much annual income each resident pays in state and local tax. In 2019, they rank 11th, with an individual’s burden down to 9.47-percent of annual income.[4]

On the other hand, it is not so clear that constitutional prohibitions — in California or in other states — always produce a system of public finance that allows Hamilton’s paradoxical logic to function properly. In restricting a state government’s taxing powers, it loses the ability to check the federal government, thereby reducing the amount of fiscal competition (and cooperation), the framers of the Constitution favored. Competition among the states, in other words, must be balanced out by competition between the states and the federal government. While it is also fair to critique the redistributive effects of the constitutional prohibitions — Proposition 13 overwhelmingly favors long-term residents over new arrivals, decreases the financial incentive for selling a home, and inflates property values — it is this intergovernmental consequence that is most problematic. Local governments, dependent on property tax, responded not by curtailing services that citizens still desired, but by requesting assistance from the state. State governments grew in power, but then faced financial hardship of their own as they competed with localities over a diminished tax base. The state government then turned to the federal government. Overall spending, when considering intergovernmental transfers, has climbed, as have debt levels. And, since those restrictions are protected by high constitutional thresholds, they limit the ability of residents to take back authority from the general government.

In closing, I emphasize that if we are to understand what state and local governments do– and what they are capable of doing — we need to follow their money. Budgeters and politicians can devise any number of complicated schemes for regulating the public purse, but, as Hamilton, again, forewarns, the entire constitutional system is “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.”[5]

Public finance is ultimately a decision about what type of government people want. And such confusion and discord in state and local finances is the clearest indication that few Americans actually know what type of government they want. They want low taxes and lots of services. The types of trade-offs — between revenues that can go to the public purse, and services provided by multiple governments — are seldom discussed, and increasingly, fail to meet the standards of constitutional federalism as a result.

Nicholas Jacobs is a Faculty Research Associate in the School of Civic and Economic Thought and Leadership at Arizona State University, where he also serves as the assistant project director of the Living Repository of the Arizona Constitution. He has published numerous scholarly articles on intergovernmental politics, American political history, and the American presidency.  

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[1] National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)

[2] Nicholas F. Jacobs and Connor M. Ewing. 2018. “The Promises and Pathologies of Presidential Federalism.” Presidential Studies Quarterly 48 (3): 552-569.

[3] Federalist 17

[4] Tax Foundation. State and Local Tax Burdens. URL: https://taxfoundation.org/state-and-local-tax-burdens-historic-data/

[5] Federalist 31

Guest Essayist: Nicholas Jacobs

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Although written more than 230 years ago, the United States Constitution contains a highly sophisticated — some might even say, modern — theory of public finance.[1] Other regimes had tried federated or confederated government (including the United States from 1781 to 1789 under the Articles of Confederation). But, the type of federalism outlined by the Constitution was an unprecedented experiment, because it gave the general government and each of its smaller, constituent governments independent taxing authority — a system known as concurrent taxation.

Hamilton’s Argument

In establishing an arrangement for concurrent taxation, the Constitution increases the likelihood that budgetary decisions reflect the needs and wishes of the country’s diverse political community, and decreases the likelihood that government spending is wasteful, obscure, and overly burdensome on specific groups of taxpayers. In short, by creating more government, Americans should pay fewer taxes.

This logic is explored — as much of the Constitution is — in The Federalist Papers. Essays number 10 and 51 might get all the fanfare, but at least a dozen individual essays, primarily written by Alexander Hamilton, deal exclusively with the logic of taxing authority. And, while Hamilton’s persuasive and innovative theories of concurrent taxation might not make for an exciting Broadway musical, these essays are among the most enduring and consequential arguments for designing government here in the U.S., and throughout the 19th and 20th centuries.

First, the Constitution is an arrangement that gives each government independent authority for raising revenue. Arguably, this is the single most consequential revision to the Articles of Confederation, which had made the national government dependent on state governments for all its revenues. It is the proximate cause of nearly all objections levied by the Anti-Federalists, because, independent taxing authority is an unambiguous method for creating a more powerful federal government.

As Hamilton describes, the new federal government needed financial independence from the state governments because “a complete power…to procure a regular and adequate supply of revenue, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution.”[2] During the American Revolution, and in its immediate aftermath, the general government struggled to finance its most basic obligations, including the maintenance of an Army during war. In giving the federal government taxing powers, the framers gave the federal government independence.

However, the Constitution not only establishes independent taxing authority, it also underspecifies the various sources of tax revenue each government can levy.[3] The 1787 Constitution prohibits taxation on just one type of revenue: taxes on exports. And, it reserves only one type of tax to the general government: taxes on imports, or tariffs. It is silent on every other conceivable form of taxation. That silence, though, is not an omission, but a deliberate design principle. First, it ensures that all governments within the constitutional order have access to funding sources in the event of some unforeseen exigency. Drawing on the experience of Great Britain’s Parliament, Hamilton was especially concerned with how the new federal government would raise money during times of war or insurrection. Limiting the federal government to just one type of revenue, say, tariffs, would handicap needed revenues, and potentially cause adverse economic effects domestically and abroad.

The under-specification in revenue sourcing also has important implications for the states. For one, they maintain the same guarantees for exigent expenses as does the federal government. They possess access to resources in order to respond to citizen demands, and they are not constitutionally prohibited to raise monies from new sources as needed. Not only that, but, as Hamilton makes clear, the new Constitution provides plenty of opportunity for the states and federal government to cooperate in the collection and distribution of revenues. As he writes in Federalist 36, if the general government begins to tax a revenue source already occupied by the states, “the United States [federal government] will either wholly abstain from the projects preoccupied for local purposes, or will make use of the State officers and State regulations for collecting the additional imposition. This will best answer the views of revenue, because it will save expense in the collection and will best avoid any occasion of disgust to the State governments and to the people.”

Therefore, concurrent taxation encourages intergovernmental cooperation. It is a cooperation defined first and foremost by efficient tax collection — the reduction of government expense by the sharing of administrative processes — as well as transparency. In the above passage, the guardians of the public revenues are the state legislatures, who have an interest in maintaining their own fiscal authority and independence, and, most importantly, the people themselves, who have little desire to give away their hard-earned dollars to a wasteful government. Governmental cooperation — land grants, targeted appropriations, administrative assistance — had to be “substantially mutual and reciprocal.”[4] If states and the federal government wanted it, and if both benefited from the intergovernmental scheme, nothing in the Constitution prohibits such arrangements. In fact, the Constitution seems to demand it if it is in the people’s best interest.

Moreover, as John Kincaid notes, such under-specification of tax authority gives special power to the House of Representatives as a “regulator” of federalism. While most constitutional analyses emphasize the Senate and the Electoral College as the safeguards of American federalism, Hamilton’s analysis reminds us that it is ultimately the people who get to decide what type of federalism they want. All revenue bills must, after all, first be introduced in the House of Representatives, which is, as Madison writes, the “most complete and effective weapon with which any constitution can arm the immediate representatives of the people.” And since revenues are the lifeblood of any government, the institution with the greatest influence on that relationship occupies a prominent place not only at the national level, but within the states and localities as well.

Intergovernmental Concurrency: Was Hamilton Right?

Just because Hamilton ordained fiscal-federalism to be so, does not mean that the United States developed according to plan. In certain important respects, the current system of intergovernmental finance (including the independent revenue authority of the states and localities) fails to meet Hamilton’s lofty predictions for how the new Constitution would operate.

Since most of the federal government’s cooperation with states and localities takes place through the use of grants (as described in the last essay), it makes sense to consider whether this fiscal instrument fulfils the constitutional spirit outlined in The Federalist. To be sure, the U.S. Supreme Court has clearly ruled that grants are constitutional,[5] but asking whether the system of grants-in-aid maintains financial concurrency is not a legal question. Do grants satisfy the institutional principle of mutual and reciprocal cooperation?

There are more than 200 individual federal grants to the states and localities, administered across 30 different federal agencies. There are some, to be sure, that meet the rigorous standard of mutuality — equal benefit for state and national goals — and reciprocity — equal influence by the states and federal government. But changes to the American political system and the expansion of federal spending authority has limited the extent to which the grant system meets these standards.

First, it would be a mistake to neglect the significant amount of mutual and reciprocal cooperation that did take place throughout the 19th century and early 20th century. These demonstrate that such type of cooperation can, and has, existed in the U.S. For instance, the national government in 1862 passed the Morrill Land Grant Act, which provided states tracts of federal land to fund state colleges with a specific focus on agricultural and mechanical sciences. States were not compelled to participate, but could choose to if it advanced the community’s interest. Given the extraordinary broad discretion granted to state legislators for selecting the location, choosing the courses of study, and the establishing the governing body of the college, every state participated.

Few grant programs today operate in this way. For one, most states are compelled into participation because failure to participate in one negates participation in another. Rather than forfeiting a small sum of money tied to one particular program, a state risks losing all federal funding for a large area of government services. Additionally, as discussed in the previous essay, grant funding is also used to impose mandates on states and localities, which means that federal grants only fund a portion of the true cost of any one federal program. States must make up the revenue elsewhere either by raising taxes, or cutting state governing expenses.

Grant programs vary in the amount of discretion given to states and cities for setting program goals, eligibility criteria, and benefits paid. Yet, even among the most flexible grant programs — often called “block grants” — goals are set by federal departments and agencies with minimal state involvement. The 1978 revision to the Community Development Block Grant, for instance, mandates that states spend 30-percent of all granted funds in rural areas, regardless of the states’ demonstrated need or preference. But even when goals are left undefined, grants might have perverse political effects that conflict with state-level goals (or even national ones). For example, the 1968 Safe Streets Act and its successor, the 1996 Local Law Enforcement Block Grant, was a testament to intergovernmental cooperation. In providing millions of dollars to localities to modernize police forces, states and cities eagerly pursued these grants to help fund police services. Yet, as scholars have recently identified, these programs created demand for government services — namely, prisons and policing — when little demand existed before. Moreover, following the terrorist attacks on September 11th, localities used these grants to purchase military-grade weapons from the federal government — lest they lose available money — with little knowledge from the policed community.[6] If a hallmark of liberal democracy is that government policy reflects the will of the governed community, police militarization and mass incarceration raise important questions about how decisions to finance the expansion of local, state, and federal governments were reached and sustained. It is a question about taxes and spending.

Hamilton likely under-estimated the political potency that federal grant programs have. When states refuse to participate and risk losing federal funds, citizens accuse government officials of leaving money on the table — and not without cause. Federal transfers to the states are funded, after all, by citizen tax dollars. In recognition of this fact, for almost fifteen-years, the states and federal government experimented with general revenue sharing (GRS) agreements, which took the place of narrower grant programs. States were provided an incentive to spend money, thereby reducing some of the negative pressures from turning down funds for grant programs. State and local officials celebrated GRS for its consistency and flexibility; officials could use the funds without restriction. Congress, with the support of the Reagan administration, abolished GRS in 1986, and re-converted many of the programs to categorical grants more susceptible to political control. In the end, GRS demonstrated that budgets are political tools, and politicians are not likely to give up the control that comes with taxing and spending authority.[7]

Nicholas Jacobs is a Faculty Research Associate in the School of Civic and Economic Thought and Leadership at Arizona State University, where he also serves as the assistant project director of the Living Repository of the Arizona Constitution. He has published numerous scholarly articles on intergovernmental politics, American political history, and the American presidency.

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[1] Vincent Ostrom has made this connection most explicit in a rich and detailed exploration of The Federalist: Vincent Ostrom. 1987. The Political Theory of a Compound Republic: Designing the American Experiment, Second Edition. Lincoln, NE: University of Nebraska Press.

[2] Federalist 30.

[3] This is the primary subject of Federalist 35.

[4] John Kincaid. 2017. “The Eclipse of Dual Federalism by One-Way Cooperative Federalism.” Arizona State Law Journal 49: 1062.

[5] While the Supreme Court dismissed Massachusetts’s claims against the 1921 Shephard-Towner Act, which provided $1-million in grant assistance to states for prenatal and newborn care, Justice Sutherland’s unanimously supported obiter dicta demonstrated that the court did not view voluntary grants as unconstitutional infringements on state sovereignty: Massachusetts v. Mellon, 262 U.S. 447 (1923).

[6] Christopher J. Coyne and Abigail R. Hall. 2018. Tyranny Comes Home: The Domestic Fate of U.S. Militarism. Stanford, CA: Stanford University Press.

[7] Timothy J. Conlan. 1998. From New Federalism to Devolution: Twenty-Five Years of Intergovernmental Reform. Washington, D.C.: Brookings Institution Press.

Guest Essayist: Nicholas Jacobs

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Intergovernmental Finance

Every nickel spent by a state or local government ultimately comes from the pockets of some private entity, but often public monies are exchanged between governments. Intergovernmental transfer payments account for 23 percent of all money spent by state and local governments.

Most intergovernmental transfer payments point “downwards” in the federal system, moving from larger governments to ones of smaller size. The federal government delivered $621-billion to the various states in 2016, and state governments sent $524-billion to various localities in that same year.[1] Overtime, intergovernmental payments have grown as a share of state and local government revenues — a trend we will evaluate in the next essay — and the federal government has even come to make direct payments to localities in some specific instances.

Most forms of intergovernmental revenue take the form of grants — direct payments to a state or local government agency, with a specific purpose outlined by the grantee. The federal government, for example, sends billions of dollars it collects to the states for the purpose of constructing and maintaining highways. Likewise, state governments send some tax revenue it collects to localities for funding public health programs. The federal government even sends money to the states that the states then divide up and send to the localities.

Intergovernmental payments can be rigidly formulaic — a set number of dollars for a set number of persons — that treat governments of similar size equally. Payments can also be re-distributive, taking tax dollars from one political community and giving it to another. Most local school systems, for instance, fund their expenses through property taxes raised in the local community they serve. Increasingly, however, state governments re-distribute some of those monies, taking local revenues from towns, counties, and cities with higher property values, and sending it to communities with lower property values, and, consequently, lower revenues.

Beyond its redistributive effects, larger governments tend to send revenues to governments of smaller size out of recognition that money can be spent more effectively at the local level than a state-wide or national level. In fact, grants and other types of intergovernmental spending account for over 17% of all federal monies that the Congress appropriates each year.[2] As such, much of what the federal government does is, in fact, done by governments of smaller size. But in exchanging monies, intergovernmental transfers are one way in which larger governments set new restrictions on smaller governments, sometimes with little relevance to the funding purpose. For example, in 1984, Congress passed a law requiring states to raise the minimum drinking age as a condition for receiving its share of federal highway funds. More recently, the federal government imposed requirements on local public schools to develop and administer specific tests for all enrolled students: The 2001 law, No Child Left Behind. As a result, if local governments fail to follow federal guidelines, they risk losing all federal grant payments for education, which account for just 10% of all local education expenditures.

Public Finance in a Federal System

The revenue decisions reached by representatives within each government set hard constraints on the other powers and actions of governing officials, but taxing decisions also affect how people behave, even when there is no specific government program.

For example, many cities have recently imposed a tax on plastic bags, like the type often used at convenience stores and supermarkets. The stated goal is not so much to raise money (although most of the time these taxes fund specific environmental programs) as to discourage the use of plastic bags. States also experiment with other types of “excise” taxes — fees placed on specific goods — to discourage tobacco, liquor, and even soda consumption; these often have the more politically-palatable name, “sin tax.” However, in a federal system where one government’s rates differ from a nearby government’s, such taxes might simply distort behaviors, rather than end them. New York State, for example, has the highest excise tax on cigarettes: $4.35 on every pack sold in its borders. Half a day’s drive away in Virginia, the state levies just 30-cents per pack. It is not a coincidence that an estimated 56% of all cigarettes smoked in New York are currently smuggled in from out-of-state.[3]

As previously mentioned, when governments of smaller scale levy certain types of taxes, the economic incidence paid by taxpayers might better reflect the actual economic circumstance of that community. This is not always the case. The United States is a very large country, and when the national government levies taxes, particularly on income, it treats each citizen in the country equally, regardless of where they live. A person making $40,000 in Alabama pays the same marginal tax-rate as a Californian who makes the same amount, but who pays more in state and local taxes, and spends a proportionately higher amount of that $40,000 on rent, food, and transportation, due to variation in cost-of-living. Consequently, citizens in some states pay more to the federal government than they get back in government goods and services — an issue known as a state’s relative balance of payments. Residents of New Jersey have the worst balance of payments — receiving just 74-cents back from the federal government for every dollar they send — while residents of New Mexico get back $2.21 for every dollar they pay in taxes.[4]

As a closing note: one of the most consequential political developments in American history has been the legal restrictions citizens have placed on state and local governments for amassing public debt. It was routine in the 1800s for cities, in particular, to go bankrupt. At the turn of the 20th century, state governments limited the ability of municipalities to run annual deficits, but, with time, states began to spend more than they took in. Through ballot initiatives and legislative action, citizens enacted state-constitutional amendments that required balanced budgets for their governments. As such, the U.S. federal government is the only government that can formally spend more money than it raises.

These restrictions further complicate the way states and localities fund themselves, especially during hard times. For instance, property and sales taxes are highly “elastic,” which means that when the overall economy slows down, revenues can quickly fall. Debt restrictions and high elasticity create a peculiar circumstance, and often increase state and local demand for intergovernmental transfers. Following the 2007-2008 recession, which depressed home prices (decreasing local property tax revenues) and slowed consumer spending (decreasing state sales tax revenues), the federal government had to increase its own debt levels in order to finance state and local government services. Of the $787 billion Congress authorized as a part of the American Recovery and Reinvestment Act, or “stimulus,” more than a third was sent directly to state and local governments.[5]

States and cities can also sidestep legal prohibitions and gather additional funds by issuing bonds for “capital improvements” or by dipping into reserved funds, such as a state employee pension fund. State and local governments, collectively, hold about $3-trillion in public debt. Many pension funds have remained unbalanced for decades and the solvency of these accounts is one of the largest financing hurdles state and local governments will have to overcome as the American population grows older, and the “Baby Boomer” generation retires.

All of these developments notwithstanding, the constitutional foundation for America’s system of public finance is largely unchanged. The complex arrangement of varying tax sources, rates, and redistribution is the hallmark of a federal system that empowers multiple governments to act simultaneously within the same political jurisdiction. In the next essay, we will look more closely at the argument for why federalism — and independent budgetary authority — creates a more robust system of public finance, even if it appears to be more complicated and unwieldly. This is not to say that the modern system is perfect, and so we will also evaluate several leading proposals to fix the country’s federated financial system.

Nicholas Jacobs is a Faculty Research Associate in the School of Civic and Economic Thought and Leadership at Arizona State University, where he also serves as the assistant project director of the Living Repository of the Arizona Constitution. He has published numerous scholarly articles on intergovernmental politics, American political history, and the American presidency.  

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[1] Data on intergovernmental transfers, including the data graphed in Figure 2, was retrieved from FRED, Federal Reserve Bank of St. Louis; https://fred.stlouisfed.org/. All dollar amounts are pegged to their corresponding calendar year, and are not seasonally adjusted.  Last accessed, April 11, 2017.

[2] Congressional Budget Office. 2013. “Federal Grants to State and Local Governments.” Government Printing Office, 5 March. Retrieved on March 14, 2018 (https://www.cbo.gov/publication/43967).

[3] Scott Drenkard. 2017. “Cigarette Taxes and Cigarette Smuggling by State, 2015.” Tax Foundation. URL: https://taxfoundation.org/cigarette-tax-cigarette-smuggling-2015/

[4] Rockefeller Institute of Government. 2017. Giving or Getting? New York’s Balance of Payments with the Federal Government. State University of New York. URL: https://rockinst.org/issue-area/giving-getting-new-yorks-balance-payments-federal-government-2/

[5] Timothy Conlan and Paul Posner. 2016. “American Federalism in an Era of Partisan Polarization: The Intergovernmental Paradox of Obama’s ‘New Nationalism.'” Publius: The Journal of Federalism 46 (3): 281-307.

Guest Essayist: Nicholas Jacobs

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If, “in this world nothing can be said to be certain, except death and taxes,” in the United States, taxes are a little more certain than death. Americans, after all, pay taxes to not just one national government, but to at least two additional ones as well: their state and locality. Paradoxically though, the framers of the U.S. Constitution believed that by establishing a system of multiple governments with independent taxing authority, the total tax burden placed on citizens would be less than it would be if one gargantuan government existed.[1]

For anyone that has ever filed your own taxes, you know that it is highly technical and subject to precise calculations, lengthy procedure, and numerous exemptions. Yet, at its most basic level, the methods by which governments acquire money are political determinations — reflective of each community’s unique history, size, political culture, and available resources.[2] The variation across different levels of government and between governments of similar scale reflects the political diversity American federalism nourishes. Understanding that variation in all of its complexity is the first step towards evaluating how federalism, despite creating many governments, can actually reduce the total tax burden placed on the American taxpayer.

Financing Local Governments

Local governments receive about 17.6 percent of every dollar that Americans pay to government each year, totaling just over $1-trillion.[3] Historically, the revenue decisions reached at the local level had the largest influence on Americans’ day-to-day lives. Municipal corporations were the leading provider of government services, establishing school systems, transportation networks, and welfare assistance before the states and national government. Much of this system remains and over time, additional types of local government emerged, each with their own taxing and spending authority; unincorporated county-governments, consolidated government units, and independent school districts — like towns and cities — all collect revenues to operate.

Remarkably, taxes account for just two-thirds of all revenues local governments raise. Localities amass considerable sums by charging fees on the use of hospitals, sewers, harbors, and airports. Some even rake in a small amount through the sale of school lunches. These “user fees” are like taxes, but they are non-compulsory and are only paid by those who use the service (sometimes provided by a private entity). Like usage fees, most local governments also raise revenue from utilities, such as a city’s water supply or transit system. Many Americans might also live in local, special-purpose districts, which are established for specific functions, and which have separate budgetary powers.

When considering taxes — compulsory, generalizable, and unavoidable legal obligations to pay the government money — local governments have a more limited “base” on which to rely. By far, the largest source of tax revenue for local governments, nationwide, is the property tax, which accounts for nearly half of all money local governments raise. But some local governments also take in money by taxing personal income and through localized sales taxes, especially on food and alcohol sold in restaurants.

Local governments derive such a significantly high percentage of their revenues from property taxes largely because of historical circumstance (they were the easiest to assess and collect), but also because they are pegged to the relative cost of living in any one, localized political jurisdiction. For instance, the rate set by the city of Boston might make sense for a densely populated, urban community where people make high incomes, property values are high, and citizens expect expensive government services. That same rate, however, might bankrupt the small family farmer in Western, Massachusetts, who owns considerably more land, and expects much less from government.

Financing State Government

State governments rely on all the same techniques as do local governments, including property taxes on possessions such as automobiles, and usage fees on services, such as parks and highways (tolls). However, there is much more variation between the states in how government finances itself.

Most states (46/50) have a general sales tax – a percentage added to each commercial transaction in the state, which retailors and merchants deliver to the state government. Sales taxes account for nearly half of all tax revenue raised by states. However, that percentage varies drastically. Some states, such as New Hampshire and Montana, do not have a general sales tax (although both states charges sales tax on specific goods such as food and lodging).  Other states, such as Tennessee and Arkansas, impose sales taxes that approach 10% on all goods purchased within the state.

Most states (43/50) also levy a state-wide income tax, which accounts for about 37% of all tax revenue at the state-level. Like the sales tax, these rates vary, and often move in relation to the state sales tax. For instance, Maine levies a 7.15% tax on the highest levels of income, which is one of the highest rates in the country; however, it charges just 5.5% on goods and services, one of the lower sales tax rates in the U.S.

This variation is important, and represents a healthy federal system. Decisions over what type of revenue source to tap generally reflect a state’s particular economy and the livelihoods within them. Taxpayers generally want to limit the amount of burden placed on themselves, so most governments try to “export” their state’s tax base. Property taxes paid on vacation homes, gasoline taxes paid by visiting motorists, and purchases made by tourists are all examples of how state governments get money from non-residents. In Nevada, nearly 80 percent of state taxes come from sales taxes, where in Illinois, state governments rely on a broader base of economic activities, including a 7% tax on corporate income, which brings in the state $3.3-billion each year.

The difference between taxing property, sales, and income is also reflective of underlying political beliefs. Most states that rely more on income tax revenues use a “progressive” rate, so that individuals who earn higher annual incomes pay more tax. In contrast, most budgeters consider sales tax to be a “regressive” measure. Although not pegged to income, individuals with lower incomes, on average, pay a higher proportion of their annual income in sales taxes than do individuals with higher incomes. Importantly, the determination to impose one type of tax over another is not a technical or objective calculation: it is the result of competing ideas about fairness, and varied expectations for government spending, which federalism encourages.

Nicholas Jacobs is a Faculty Research Associate in the School of Civic and Economic Thought and Leadership at Arizona State University, where he also serves as the assistant project director of the Living Repository of the Arizona Constitution. He has published numerous scholarly articles on intergovernmental politics, American political history, and the American presidency.  

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[1] Vincent Ostrom. 1987. The Political Theory of a Compound Republic: Designing the American Experiment, Second Edition. Lincoln, NE: University of Nebraska Press.

[2] Otto A. Davis,, M.A.H. Dempster, and Aaron Wildavsky, “A Theory of the Budgetary Process,” The American Political Science Review 60 (1966): 529-547.

[3] All figures, referenced in the following two sections on state and local finance, including the data graphed in Figure 1 are drawn from the U.S. Census Bureau’s 2016 State & Local Government Finance Historical Dataset, which is publicly available at https://www.census.gov/data/datasets/2016/econ/local/public-use-datasets.html

 

Guest Essayist: Tom Morain

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Early in its history the U.S. Congress set up an orderly way for western lands to become states with status equal to the Original Thirteen. Senators and representatives in Congress remembered how unhappy the American colonists were under Great Britain’s rule, so unhappy in fact that they fought the American Revolution to become free of Great Britain.  One of the most important acts that Congress passed was the Northwest Ordinance of 1787 that set up a system of government for the territory north of the Ohio River that became the states of Illinois, Indiana, Ohio, Michigan and Wisconsin. It was a model for other U.S. territories to follow when they wanted to become states.

When the American Revolution ended, the United States owned the land east of the Mississippi River and south of the Great Lakes to Spanish lands that bordered the Gulf of Mexico. Because this area was beyond the borders of the original 13 states, it became the responsibility of the federal government. The Trans-Appalachian was small but rapidly growing. It needed a way to deal with Native American populations and a defense against British threats to the north and Spanish ones from the south. Congress knew that the settlers would eventually need much more local government.

In 1803, the United States more than doubled its original size with the purchase from France of all the lands drained by the western tributaries of the Mississippi River, the Louisiana Purchase. Settlement in the region would wait until Native American titles to an area were removed and the land was surveyed in preparation for sale to private owners. Nevertheless, before pioneers crossing onto the western prairies ever decided to move west, they knew 1) they would one day have the full rights of citizens living in the East, and 2) what the steps necessary to attain full statehood were. Congress established a formula for promoting self-governance in the western land in stages. Until the population of an area reached 5,000 voters, the region was a district. (At this time, only free white males were voters.) A district was governed by a governor and three judges appointed by the President. When the population reached 5,000 the settlers could elect their own legislature. The area was called a territory. The governor, however, was still appointed, not elected by the voters. The territory could also elect a representative to Congress who could speak on issues in Congress but had no vote. When the population reached 60,000 the territory could apply for full statehood.

Iowa’s path to statehood followed the steps laid out in the Northwest Ordinance. In 1834 the land that would become Iowa was attached to the Michigan Territory. In 1836 as Michigan prepared for its own admission as a state, Iowa was transferred to the Wisconsin Territory.  With more and more settlers crossing the Mississippi River, a separate Iowa Territory was formed on July 4, 1838. Its boundaries stretched far north of the current border into Minnesota and the Dakotas. Because the population had already reached 22,859, the settlers had the right to elect their own legislature.  President Martin Van Buren, a Democrat, appointed Robert Lucas as Iowa’s first territorial governor. Burlington became the first capital. In 1840 William Henry Harrison, a member of the Whig Party, became president. He appointed another Whig, John Chambers, Iowa’s second territorial governor. The territorial capital was moved to Iowa City.

While both Lucas and Chambers urged Iowans to push for full statehood, many settlers were in no hurry. As long as Iowa was a territory, the federal government paid the costs of much of the government. If Iowa became a state, the settlers’ taxes would pick up the tab, and early settlers did not want to see their tax bills increase.  Iowans in the Whig party were happy to have a Whig president appoint the governor. They feared that the Democrats would win an election for governor if Iowa became a state. In 1844 the nation elected James K. Polk president. Because Polk was a Democrat, Iowa soon got a new territorial governor, James Clarke, a Democrat. By this time the population had increased to over 75,000. There was growing interest in the statehood question. With more people to share the cost of government, fears of rising tax bills were not such an issue.

During these years the issue of slavery was deeply dividing the United States. Slavery was forbidden in the Iowa territory, but Iowans could not escape the national debate. A plan in the United States Senate had been worked out in the Missouri Compromise of 1820 that would keep the Senate balanced between sectional interests on slavery. With the exception of Missouri itself, all western lands north of the southern border of Missouri, would prohibit slavery. Those south of the line could permit it. To maintain an equal number of senators from the free states in the North and the slave states in the South, every time a new slave state was added, a new free state had to be admitted, and vice versa for the addition of free states. That meant that when Iowa entered the Union as a free state, it would need to find a slave state partner. When Florida became a state in 1845, the pressure was on Iowa. If Iowa waited too long, some other Northern state might partner with Florida, and there might not be another slave state available for some time.

Slavery shaped the debate over Iowa statehood in a second and more direct way. In the constitutional convention that drew up the required structure of the new state, delegates proposed borders for Iowa that made it larger than it is today. The northern border stretched up to include Minneapolis/St. Paul in Minnesota. However, when the proposed constitution reached Congress, representatives of northern states amended it with borders making Iowa much smaller. Iowa was the first free state west of the Mississippi, and free state Congressmen were looking ahead. A smaller Iowa would leave more land for additional “free” states in the Louisiana Purchase. They wanted a western border for Iowa about 60 miles east of the Missouri River and only slightly north of the current Minnesota border. Iowans rejected the change and voted against statehood in the required referendum. The issue went back to Congress who proposed the borders we know today as a compromise, the shape we know today, from the Mississippi on the east to the Missouri River in the west. Iowa voters and Congress approved the new boundaries. On December 28, 1846, President James K. Polk signed a bill  making Iowa the 29th state.

Almost 60 years after the passage of the Northwest Ordinance of 1787, Iowa completed all the requirements for statehood. Iowa citizens could now vote for president. They could elect senators and representatives to Congress. They had a state legislature. They could elect their own governor and judges. As with all new states added after the Original Thirteen, American settlers knew that they were not leaving their citizenship behind when they moved into the western territories.

Sources:

  • Sage, Leland. A History of Iowa. Ames, Iowa: Iowa State Press, 1974.
  • Wall, Joseph. Iowa: A Bicentennial History. New York, New York: Norton, 1978.
  • Schwieder, Dorothy. Iowa: The Middle Land. Ames, Iowa: Iowa State Press, 1996.

Dr. Tom Morain is Director of Government Relations at Graceland University in Lamoni, Iowa.  He taught Iowa history at Iowa State University and Graceland and served as administrator of the State Historical Society of Iowa.  He has authored three books and numerous articles on Iowa history and has been awarded the highest honors for contribution to public education by both Humanities Iowa and the State Historical Society.

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Guest Essayist: The Honorable David L. Robbins

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New Mexico became the 47th state to join the union on January 6, 1912.  This was shortly before Arizona was admitted on February 14, 1912.  The New Mexico Constitution became effective on the day Congress admitted New Mexico to the union.  The original document was ratified by the New Mexico Constitutional Convention on November 21, 1910.  The voters of the State ratified the constitution on November 5, 1911.

The ratified constitution and eventual boundaries varied widely from what was originally proposed in the mid 1800’s.  The New Mexico territory was formed following the end of the Spanish American War in 1848 through the treaty of Guadalupe Hidalgo.  The territory initially consisted of parts of west Texas (which claimed the territory east of the Rio Grande river), most of present-day Arizona, and part of southern Colorado.

In the 1850’s the country was in a deep debate on slavery.  Although slavery was not common in the territory, the Missouri Compromise of 1820 was used as an argument that New Mexico could be a slave state, but the argument wasn’t persuasive.  The lack of statehood for the area prior to the Civil War and disagreement on its boundaries delayed its admission for decades.  The original territory excluded the south western part of present-day New Mexico (the Boot Heel) and southern Arizona.  This nearly 30,000 square miles of land was purchased from Mexico in 1854 which permitted the construction of a rail line across the southern-western part of the country.

The Constitution for the State has 24 Articles and has been amended more than 170 times in 107 years.  Conversely, the U.S. Constitution has seven Articles and has been amended only 27 times in 230 years, including the first ten amendments included as the Bill of Rights.  Many amendments to the State Constitution are minor, and several have been related to voting changes.  In most states, these minor changes are usually handled by State statutes, but are enshrined in the New Mexico Constitution.

New Mexico has a long and colorful past spanning several millennia and a rich and diverse culture.  The Constitution incorporates much of that historical culture.  Native Americans have been present in New Mexico for over eight thousand years.  After Spain conquered Mexico, it included all the area of present-day New Mexico.  During Spanish control, hundreds of land-grants were issued to individuals.  Many of these land grants still exist today.  The heirs to those land-grants share in that rich history but have often had to fight for their legal right to those land-grants.

Due to the strong Spanish history and historical Spanish legal system, New Mexico’s constitution declares the State as a bi-lingual State.  This was intended to protect educational access of Spanish speakers and those of Spanish descent.

Despite the acknowledgement of the strong Spanish history, approval by the Constitutional Convention in 1910 wasn’t assured by Congress, as provisions restricted the ability to be amended.  These restrictions included;

  • the requirement of a two-thirds vote of the legislature to propose amendments,
  • in addition to a bare majority, all amendments would be ratified by at least 40% of those voting in the election, with a 40%+ vote in at least half of the State’s counties, and
  • a limitation on the total number of amendments submitted to the people in a given election cycle.

Congress did not approve of these anti-populist provisions.  As a prerequisite to admission as a state, Congress required that the people of the State ratify an amendment that would:

  • provide for a simple majority vote in the legislature,
  • ratify by a simple majority vote of the people, and
  • do away with the limitation on the total number of amendments.

The prerequisites were proposed by Henry De La Warr Flood from Virginia and came to be known as the “Flood amendment.”

Article XII of the Constitution addresses education and requires that the State provide public education “sufficient” for all children.  While “sufficient” isn’t defined, poor educational outcomes for minority and at-risk students prompted a challenge in 2014 via several lawsuits.  Two of the largest suits were combined and officially became known as the Martinez-Yazzie lawsuit.  In December 2018 Judge Sarah Singleton sided with the plaintiffs ruling the State had failed to meet its constitutional requirement for at-risk students and gave the State until April 2019 to resolve the deficiencies.  Many of the at-risk students are English language learners, primarily of Spanish heritage.

Funding for education is addressed in Section 2 of the Constitution that established the Land Grant Permanent Fund for education.  This was intended to provide a sustainable source of income to fund the public schools in the State.  New Mexico is a geographically large State, fifth largest in the country, with over 126,000 square miles and is sparsely populated (a bit over 2 million).  Along with a small economic base, the Land Grant Permanent Fund is insufficient to totally support the educational mandates of the Constitution, so the State Legislature also appropriates funds directly to supplement other funding sources.

Partly in response to the Martinez-Yazzie lawsuit, the 2019 NM Legislature increased public school funding by over $700 million, a 13% increase over last year.  Despite this increase, many continue to feel the State is failing to meet this constitutional mandate.  Currently the State contributes approximately 47 percent of a $7 billion State budget to elementary and secondary.  This puts New Mexico around 35th in the country on spending per student, but the State is near the bottom in educational outcomes.

In 2003, the State Constitution was amended with the goal of improving educational outcomes in a State that has ranked at or near the bottom of the 50 States.  This created a Public Education Department (PED) with a Secretary appointed by the Governor and confirmed by the New Mexico Senate.  The amendment also renamed the State Board of Education to Public Education Commission (PEC), and the elected Board members became Commissioners.  Prior to this amendment, the PED was directed by a Superintendent, appointed and accountable to the State Board of Education.  According to the Constitution and statute, the PEC is advisory to the PED on education matters and the sole authorizer and overseer of State authorized Charter Schools.

The New Mexico Constitution has many unique features including how public education is addressed.  Time will tell if the education amendment and recent judicial interpretations of the Constitution will enable the State to move up in national rankings.

David L. Robbins has over 13 years’ experience in state government, and more than 30 years in the private sector.  He holds a bachelor’s degree in Economics and an MBA in Finance, both from UNM.  His experience has included management, wholesale and retail sales, insurance, banking, utilities, education, consulting, public service, and construction.

David has been an adjunct professor of finance at the Anderson School of Management at the University of New Mexico.  He was elected to the Albuquerque Public Schools’ Board of Education in 2009 and served from 2009-2013, including Chairman of the Finance and Audit Committees and the Capital and Technology Outlay Committee.

Until December 31, David was the Director of Administrative Services and CFO for the NM Department of Workforce Solutions.  He previously held the same positions at the NM Taxation and Revenue Department, where he oversaw the annual distribution of approximately $7 billion in state revenues and taxes to New Mexico cities, counties, and various state funds. 

In 2017, Governor Susana Martinez appointed David to vacancy on the Public Education Commission, District 2, created in the passing of Millie Pogna. He ran unopposed for election this past November and started serving a four year term, running through 2022.

David and his wife of over 43 years, Jan, are the proud parents of three grown children, including one with disabilities. They have five grandchildren (two granddaughters and three grandsons); all live in the Albuquerque area.  David and his wife are active members of their church, where he serves as a Deacon and teaches a senior men’s Bible study class.

 

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Guest Essayist: Jeremy Ward

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Long before Alabama was recognized as the 22nd state of the United States of America, it was home to generations of Native Americans belonging to numerous and varied tribes such as the Alabama (or Alibamu), Cherokee, and Choctaw. Europeans entered what is modern day Alabama in the early part of the 16th century, with the first documented visit by Spanish explorer Hernando de Soto in 1539.

By the mid-17th century, England had laid claim to modern day Alabama and included its territory in the Province of Carolina. As early as 1687, English traders from the province frequently traveled to the Alabama River valley to trade with Native Americans. However, the French also claimed the territory as their own and the two countries engaged in fierce competition for Indian trade for several decades until the French and Indian War broke out in 1754.

After suffering defeat, the French ceded its territories east of the Mississippi River to Great Britain. Modern day Alabama’s border would continue to shift – and change hands between England, Spain, and finally America – until 1817 when the eastern portion of the United States’ Mississippi Territory would be divided to create the Alabama Territory. Finally, on December 14, 1819, Alabama was admitted as the 22nd state to the Union.

Just as Alabama’s boundary lines changed numerous times over the years, so too did its capital. The first was the territorial capital in St. Stephens in 1817, near present-day Jackson, Alabama. Then in 1819, Huntsville served as the temporary capital while a convention assembled to prepare a State Constitution. The first “permanent” capital was established in 1820 near the convergence of the Alabama and Cahaba rivers but a flood resulted in damage to the statehouse. The capital was soon moved to Tuscaloosa in 1826 to a new three-story building designed by the same architect, William Nichols, who designed the old capitols in North Carolina and Mississippi.  The capital made one final move in 1846 to its current location of Montgomery, but a disastrous fire shortly after required its rebuilding.

Alabama’s early Constitutions were considered a reflection of Jacksonian popular democracy.  The post-Reconstruction era produced the 1901 Constitution, which with hundreds of amendments, is the longest state constitution in America.  Reform of the constitution, including repeal of impediments to participation by African Americans has been adopted through amendments and on an article-by-article basis.

The State of Alabama, which will celebrate its Bicentennial this year, has a rich and vibrant history. Over the past two centuries, its cities and towns have been the scenery of some of our Nation’s most important and compelling stories; from the unshakable courage displayed at Selma’s Edmund Pettus Bridge to the scientific and engineering feats performed in Huntsville that helped put men on the moon. Alabama’s people have been history-makers as well. This state has given our nation and the world the Tuskegee Airmen, Helen Keller, Hank Williams, Jesse Owens, Harper Lee, Willie Mays and more names too numerous to list.

Jeremy Ward is the development officer for the American Village Citizenship Trust, a pioneering and innovative American history and civics education center located in central Alabama. Utilizing costumed historical interpreters, the American Village invites students and general public visitors to “step into the scenes” of America’s journey for freedom and independence, and to examine how the lessons that can be learned from our Nation’s revolutionary beginnings are still vitally relevant today in our roles as private citizens. For the past 15 years, Ward has held philanthropic leadership positions in the nonprofit (Boy Scouts of America) and higher education sectors (from traditional liberal arts to major urban research institutions). He can be reached at jward@americanvillage.org.

 

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Guest Essayist: Andrew Langer

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Early on in the film, Lawrence of Arabia, Colonel Lawrence (played by Peter O’Toole) offers a quote from Themistocles to a British General.  “I cannot fiddle,” Lawrence says, “but I can make a great state from a little city.”

Themistocles’ quote is illustrative of an important point:  sometimes the simplest acts can have tremendous impact in the long term for a society.  Clearing title, the action of ensuring that someone owns a particular parcel of land “free and clear” is one of these actions.  From the standpoint of real estate law, the importance is obvious:  you cannot buy or sell or invest in a parcel of land unless the thread of ownership is crystal clear.

But clearing title goes far beyond that—and is an essential element of a free and prosperous society.

Throughout his works on property, especially the seminal book “The Mystery of Capital,” Peruvian economist and political scientist Hernando DeSoto talks at length about the role that strong property rights play in creating prosperous and stable societies.  In it, he compares and contrasts the various property rights regimes in a host of nation, and lays out the case for how the protection of private property (or lack thereof) plays into that nation’s well-being.

DeSoto is emphatic that ensuring the clarity of title is one of the most-important, if not the most, single element that separates a rich and stable nation from a poor and unstable one.  Without that clear title, people are hesitant to buy or sell a piece of property.  Worse, without that clear title, people cannot use that piece of property to invest in their own future.  They cannot better themselves, and without that prospect they lose hope.  And it is that loss of hope, combined with economic stagnation, that leads to the collapse of a society.[1]

From its founding, the United States has looked at such property rights as a bedrock principle of the Republic.  But beyond the Constitution’s protections in the Bill of Rights, the nation could not have become who we are without recognizing the importance of clear title.

In fact, the very mechanisms by which U.S. Territories became states provide us with example after example of how clearing title was an essential element of the settling of the American West.  If one surveys the “Enabling Acts”—especially the Enabling Acts of states which became a part of the Union after the 1848 Treaty of Guadalupe Hidalgo, one will find a variation on the phrase in each that, the title to all “unappropriated public lands” shall be turned over to the federal government, and that the federal government will become responsible for “disposing” of these lands.[2]

The Territorial Governments (that later became state governments) entered into this agreement because that was this tacit understanding that in order to facilitate smooth settlement (and thus encourage that settlement), ensuring that a parcel of land had a clear title was key.

And it worked.  The federal government was able to effectively encourage mass settlement in western states… and those who were able to secure property (either for free or for a very low amount) could not only build on those lands, secure in the knowledge that they wouldn’t have someone claiming that land somewhere down the road, but they could use that property as collateral for investment as well – an essential aspect of agriculture, for instance, even in modern times.

The lesson also has ramifications in the context of international law.  Many conservatives and conservative organizations (rightly) show skepticism at international legal regimes, like the United Nations Convention on the Law of the Sea.  Understandably, they don’t like the idea of an international body picking and choosing who or how someone gains access to valuable minerals and other resources under the sea bed in international waters.

But what they fail to understand is that unlike much of what the U.N. does, UNCLOS is a pro-property rights regime that builds on how we understand property and finance to ensure the same kind of smoothness that led to the settling of the American West.  It essentially grants that title (in reality, a permitted leasehold interest) to an applicant, who can then turn around and secure the money necessary to extract the resources.

Two companies present themselves before a lending institution attempting to secure financing for an under-the-sea-bed extraction project.  One has the “title” from UNCLOS.  The other is just asserting that the project is in international waters, and is therefore open to anyone.

Who will the bank give the loan to?

The one who has the legal right to engage in the project, of course.  The one who has clear title.

As the World looks to finding ways to promote economic prosperity and political stability—the work of Hernando DeSoto makes it clear.  Look towards property rights, including ensuring clear title to property.  This, as Themistocles would say it, is how you do make a great state from a small city.

Andrew Langer is President of the Institute for Liberty.  This fall he begins teaching at the College of William & Mary in Virginia

 

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[1] In another DeSoto work, “The Other Path,” he discusses at length the role that titled property rights, including the issue of determining clear title, played in Peru’s struggles with the Marxist terror organization, The Shining Path.

[2] In fact, there is some question as to whether or not this language in these enabling acts serves to contractually obligate the federal government into disposing of these lands, not retaining them in perpetuity.  With the federal government owning and controlling so much land, to the detriment of state and local governance, some believe that the Federal Land Policy and Management Act of 1979 violates the conditions by which these states became states.

Guest Essayist: Benjamin DiBiase

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Florida is the southernmost state in the contiguous United States, situated at the bottom of the Atlantic seaboard. It is a peninsula, bordered by the Atlantic to the east, Gulf to the west, Caribbean Sea to the south and the U.S. states of Georgia and Alabama form its northern border. Archaeologists believe the peninsula was first occupied by a nomadic group of hunter-gatherers around 14,000 years ago. These indigenous groups slowly adapted to a changing climate and grew crops, established large chiefdoms, and eventually numbered over 350,000 people by the end of the 15th century.[1]

Florida was first sighted by Europeans in 1513, when Juan Ponce de Leon traveled north from Puerto Rico in search of natural resources, slaves, and potentially a new landmass for the Spanish colonial dominion. Although probably not the first European to set eyes on Florida, his expedition was the first officially sanctioned and recorded by the Spanish. He landed somewhere on Florida’s eastern Atlantic coast, but did not attempt to settle the region. In fact, much of the 16th century saw hundreds of potential settlers attempt colonization on the Florida peninsula, only to be driven away by hostile indigenous groups, decimated by exposure and starvation, or simply left to seek resources elsewhere in the Caribbean. In 1564, a group of French Protestant Huguenots built a small community in what is now Jacksonville on Florida’s northeast coast, only to be driven away by the Spanish led by Pedro Menéndez de Áviles in 1565. In driving away the French, Menéndez established what is now the oldest continuously occupied European settlement in North America, St. Augustine. The colonial settlement of St. Augustine remained a small military outpost for the next few centuries. By the end of the 18th century, a second settlement was established in west Florida’s Gulf Coast, known as Pensacola. Governance of both colonial outposts was administered from Cuba.[2]

In 1763, as part of the Treaty of Paris ending the French and Indian War, Florida was transferred to the British in exchange for Havana. The British ruled Florida for another twenty years, remaining loyal to the British crown during the American Revolution. As a result of that conflict, and Spain’s assistance in capturing Pensacola from the British, the newly formed American government handed Florida back to Spain. Now broken into two separate colonies, East and West Florida, the Spanish struggled to form a productive colony and attract settlers. However, the Spanish government promulgated the Constitution of Cádiz in St. Augustine in 1812, which was Florida’s first written constitution, and governed the cities administration for almost another decade.[3] Several attempts to overthrow the government, the War of 1812 and increasing pressure from American colonists to the north, eventually forced Spain to relinquish control of Florida to the Americans. The Adams-Onís Treaty of 1819 was officially ratified in 1821, and Florida became a U.S. Territory.[4]

The U.S. Territorial Period was marked by the establishment of a southern-style plantation economy, and years of federal military efforts to remove the Seminole Indians to reservations in the Oklahoma Territory, known as the Seminole Wars. By 1838, representatives from every county met in St. Joseph, a small town outside of Tallahassee and drafted a state constitution. They relied on the Alabama Constitution of 1819 as a model, and were guided by the several hot button issues central to the lives of Floridians at the time; statehood, banks and slavery.[5]  It was voted on later that year, and sent to the U.S. Congress. It was not until March 1845 that Congress officially voted in favor of admitting Florida into the Union as the 27th state.

By January of 1861, however, another delegation of statewide representatives met in Tallahassee and voted in favor of secession, rewriting the state Constitution, and joining the Confederate States of America a month later. Florida remained in the Confederacy until the end of the war in 1865, finally admitting defeat and beginning a years-long federal occupation of the state as Reconstruction began. Ravaged by years of war, the legislature passed a proposed constitution, but it was never adopted.[6] In 1868, Floridians voted on, and accepted a new state Constitution, and Governor Harrison Reid addressed the State Legislature in his inaugural address in June 1868.[7] By 1877, efforts to enfranchise emancipated slaves and integrate them into Florida society had largely failed. Despite tremendous strides made by African Americans to run and be elected to state offices, the efforts of former Confederates and white southerners derailed any major gains, establishing strict segregation laws and utilizing violence to intimidate minority populations.[8]

In 1885, Florida drafted a new state Constitution, codifying what would be generally referred to as “black codes” or “Jim Crow” policies to hinder black opportunity in the state. Nearly a century late, however, as Florida figured prominently in the Modern Civil Rights Movement of the 1950s and 1960s, the state wrote a new Constitution in 1968, reversing many of the discriminatory laws that existed in the 1885 document. It was the changing demographics of the state, coupled with the national movements toward equality and transparency that finally pushed Florida’s lawmakers to substantially revise the 1885 constitution more than eight decades after it went into effect. Unique to the 1968 constitutional rewrite was the provision to automatically introduce amendments and augment the Constitution every 20 years. The Constitutional Revision Committee (CRC) is appointed by the Governor, state officials and the chief justice of the Supreme Court, and takes input from the public concerning changes to the language of the document, which would then be voted on by the public in the next election cycle. It was this 1965 creation of the CRC that enabled the 1968 constitution to be created.[9]

Ben DiBiase, MA, is a native Floridian. He holds a Master’s degree in History from the University of Central Florida. Ben currently works as the Head Archivist and Educational Director for the Florida Historical Society. He is the editor of French Florida (2014) and is a regular contributor to the Florida Frontiers radio and podcast program that airs around the state on NPR stations.

 

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[1] Jerald T. Milanich, Florida’s Indians from Ancient Times to the Present (Gainesville: University of Florida Press, 1998) 3.

[2] James C. Clark, A Concise History of Florida (Charleston: The History Press, 2014) 15-22.

[3] M.C. Mirow, Florida’s First Constitution: The Constitution of Cádiz Introduction, Translation, and Text (Durham: Carolina Academic Press, 2012) 3-5.

[4] Ibid., 25 – 31.

[5] Stephanie D. Moussalli, “Florida’s First Constitution: The Statehood, Banking and Slavery Controversies,” Florida Historical Quarterly, 74 no.4 (1996) 423.

[6] Mary E. Adkins, Making Modern Florida: How the Spirit of Reform Shaped a New State Constitution (Gainesville: University of Florida Press, 2016) 5.

[7] Journal of the Senate for the First Session, Fifteenth Legislature of the State of Florida, (Tallahassee: Office of the Tallahassee Sentinel, 1868) 5.

[8] Adkins, Making Modern Florida, 6-7.

[9] Ibid., 56-57.

Guest Essayist: Danny de Gracia

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Born of ancient volcanoes in Earth’s prehistory and baptized by fire into the modern era by the bombs of the Imperial Japanese attack on Pearl Harbor, the history of the Fiftieth State is nothing short of legendary.

First discovered and populated by seafaring Polynesian peoples perhaps around the 12th century or even earlier, Hawaii would be thrust into global destiny by European contact when British Captain James Cook discovered and sailed past the island of Oahu on January 18, 1778. As a midpoint in the Pacific, the Hawaiian Islands would soon become a key strategic shipping hub that attracted merchants, missionaries, and militaries alike from around the world.

The relevance of Hawaii would endure long beyond the Age of Sail, as the United States by the end of the 19th century had overtaken all the European powers as an industrial powerhouse. Protection of American shipping routes, defense of the West Coast, and access to Asia necessitated a forward naval presence in Hawaii, and in 1887, the U.S. military began leasing Pearl Harbor.

American influence had already been growing in Hawaii since the end of the Civil War due to the need for sugar cane amidst economic devastation in the South, and the Reciprocity Treaty of 1875 cemented the Islands as a leading driver of the growing U.S. economy when it created a free trade agreement for agricultural products from the Kingdom of Hawaii.

Having already seen European military rivals make power plays for control of Hawaii, American business interests maneuvered for decisive U.S. control of the islands. In 1893, Hawaii’s monarchy dissolved and Queen Liliuokalani was pressured by local militias to abdicate her throne. Ultimately, it would be the Spanish-American War which put the U.S. in conflict on distant shores as far away as the Philippines and Guam, that would give the U.S. justification to annex Hawaii.

On July 4, 1898, just four months after the sinking of the Battleship Maine in Havana Harbor, the U.S. Congress adopted Senate Joint Resolution 55 – nicknamed the “Newlands Resolution” after its introducer, Democratic Rep. Francis G. Newlands of Nevada – which set the framework for annexation of Hawaii. On August 12, 1898, a small ceremony on the steps of Hawaii’s Iolani Palace marked the formal annexation of Hawaii and its transfer of sovereignty to the United States.

Pearl Harbor and the Road to Statehood

At the dawn of the 20th century, political shifts in Asia, not Washington D.C., would set the stage for Hawaii’s most significant moment in American and world history. Japan, having dashed the Russian Navy’s hopes for a Pacific warm water port in the spectacular 1905 Battle of the Tsushima Strait, saw herself as an emerging world military power, even on-par with the great European nations.

As a participant in the First World War, Japan’s seizure of Germany’s Pacific territories led the Imperial government to believe it had an important seat at the table as part of the victorious Allies at the Paris Peace Conference of 1919.

Much to the Japanese dismay, the U.S. and European powers treated members of the Imperial delegation as bit players in the Treaty of Versailles. The tense peace that followed was only underlined further by the Washington Naval Treaty of 1922 which limited the construction of battleships and prevented the construction of any new Pacific Ocean military bases – making Hawaii, as an existing U.S. naval and army forward base, perhaps the most strategically relevant island in the entire world.

As Japan, the U.S., and the Europeans all sought to expand in a world that the machines of the Industrial Revolution made even smaller, a perfect storm of interests, politics, and geography was brewing that would one day rain bombs over Hawaii.

This confluence of international politics and geography could lead only to Japanese fighter planes over Oahu on the fateful morning of December 7, 1941. Colliding over the azure blue waters and exotic green jungles of Hawaii were more than just Japanese and American forces, but two competing destinies of fascism or freedom.

The attack on Pearl Harbor would not only steel the U.S. resolve to defeat the Axis Powers, but the terrible east wind rain of Imperial Japanese bombs had a more dynamic effect in that they aroused many Hawaiians to see themselves as a vital part of the American experience. Fighting not only for the safety of their islands but also for the freedom of their way of life, when America triumphed in World War II, Hawaiians felt a special place as part of the victory that liberated the world.

Hawaii’s Statehood and Constitution: A Model for the Future

The immediate post-WWII era saw intense enthusiasm among many locals to petition for Hawaii statehood, bringing together religious, cultural, academic, labor, political, and business leaders in calls to make Hawaii part of the Union. America had become the world’s first superpower, and Hawaii had been the pivot point for the dawn of an American century.

In 1950, Hawaii’s Constitutional Convention was a key step towards statehood for the Territory of Hawaii, as many delegates felt that it showed for the first time in history that Hawaii was ready for statehood.

Though Democrats in Congress had staunchly resisted Republican-leaning Hawaii from entering the Union, unresolved postwar tensions with the Soviet Union and the Cold War could not afford a lingering question mark in the Pacific Ocean. Hawaii, which had been so essential to winning WWII, would be crucial for containment of the Soviet Union and access to Asia in a nuclear world.

On March 18, 1959, Congress passed the Hawaii Admission Act, which at last provided for Hawaii’s ascension to full statehood.  Section 3 of the Act would proudly declare, “The constitution of the State of Hawaii shall always be republican in form and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.”

On June 27, 1959, Hawaii voted for statehood, a leap of faith which helped mollify the political and cultural divisions of the past, as locals finally had the chance to determine Hawaii’s place in the world for themselves. No longer under the supervision of a monarch or held at bayonet point, the people of Hawaii were given the chance to choose for themselves the future.

They voted “yes.”

In a landslide victory for statehood, 132,773 voters, or 94.3 percent of the vote, cast their ballots to become the Fiftieth State.

As the most recent state to enter the Union, Hawaii’s constitution represents the most modern, elegant, and in many instances, poetic social compacts among the States. Hawaii is especially unique in that every decade, voters are given the option to vote for a recurring Constitutional Convention question, which continues to place the future of Hawaii in the hands of Hawaiians.

The most recent revision to the Hawaii Constitution’s Preamble reminds the world, “We reserve the right to control our destiny, to nurture the integrity of our people and culture, and to preserve the quality of life that we desire. We reaffirm our belief in a government of the people, by the people, and for the people, and with an understanding and compassionate heart toward all peoples of the earth, do hereby ordain and establish this constitution for the State of Hawaii.”

In the annals of history, the story of mankind is one of mistakes and injustices, but also triumphs and great honors. History has not always been right or kind, but history in America is our story, which we have the freedom to change. In the volcanic soil of Hawaii, scarred by war and upheaval, and watered by the blood and tears of so many, a tree of liberty has grown in the Pacific whose fruits give us hope for the future of our planet.

In 1993, Congress and President Bill Clinton issued the Apology Resolution which acknowledged the overthrow of the Kingdom of Hawaii. While some Native Hawaiians continue to feel grieved over the loss of their sovereignty, the 1993 Apology Resolution was a helpful part of Hawaii’s healing and progress. Today, the majority of Hawaiians and Hawaii residents continue to proudly and patriotically support the State of Hawaii and their place as American citizens.

Though today’s Hawaii struggles with many economic, political, and cultural issues, the sons and daughters of Hawaii represent the blossoming of a great generation of Americans who will continue to further the relevance of our United States of America for centuries to come. As someone whose family was among the very first Filipino plantation immigrants to come to Hawaii, my experience is particularly special, because my family has had the joy of becoming citizens of Hawaii and citizens of these United States.

May God forever bless the State of Hawaii, and all those who live in it.

Dr. Danny de Gracia, Th.D., D.Min., is a political scientist, theologist, and former committee clerk to the Hawaii State House of Representatives. He is an internationally acclaimed author and novelist who has been featured worldwide in the Washington Times, New York Times, USA Today, BBC News, Honolulu Civil Beat, and more. His first novel, “American Kiss: A Collection of Short Stories” is available online on Amazon.com, Barnes and Noble, and other retail outlets.

 

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Guest Essayist: Mary Salamon

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The individual states in the United States didn’t form all at once. With each state, there was a process to their creation, and yet they share similar beginnings. The first beginnings of each state start with the Native American tribes, explorers, missionaries and then settlers. This process laid a foundation for new territories that would eventually separate into individual states.

Washington State’s famous explorers are George Vancouver, Robert Gray and the American explorers Lewis and Clark. George Vancouver came to the Pacific Northwest with two ships, the Discovery and the Chatham. Vancouver named everything in sight, which included islands, mountains and waters. Puget Sound is named after Peter Puget, a lieutenant accompanying him on the expedition. To this day, we still have the names Whidbey Island, Mount Baker, Mount Rainier, and Hood Canal are all key geographical features in the state of Washington named by Vancouver.

Robert Gray was the first American explorer to circumnavigate the globe. The Columbia River is named after his ship the Columbia and Grays Harbor County is named for Grays Harbor the bay in the southwest corner of the county that Robert Gray discovered.

The Lewis and Clark expedition open the United States to several new finds. According to Historylink.org, “In May 1803, the United States purchased Louisiana from France.  The doubling of U.S. territory caused President Thomas Jefferson (1743-1826) to send Meriwether Lewis (1774-1809) on a westward expedition to explore the nation’s new piece of real estate.  The Corps of Discovery was a party of 33 people, including Sacagawea, a Shohone [sic] Indian, and York, an African slave.  The Corps, under the leadership of Captain Lewis and Captain William Clark (1770-1838), traveled by foot, horse, and watercraft across North America and back again beginning in Wood River, Illinois, in May 1804, and returning to St. Louis, Missouri, in August 1806.  The period the Corps spent along the Columbia and Snake rivers and at the mouth of the Columbia — from October 1805 to May 1806 — was principally within what is now the State of Washington.”

https://www.historylink.org/File/5556

Lewis and Clark Expedition is credited with discovering 178 plants species. Two Plants, Lewisia rediviva (also known as bitterroot) and Clarkia pulchella (elkhorn clarkia) – were named after the explorers.

In the Pacific Northwest, there were Native American tribes all over the region. There were the Chinook, Makah, Lummi, along with Nooksack, Nez Perce, Salish, and the Tlingit. On the other side of the mountain in Washington were Yakima, and Spokane tribes. The Cayuse and Okanogan tribes were further south in the region. Every story is different, but in general, the beginning relationships between the Indians and the Settlers were friendly and cordial at first, then disputes over trade and land erupted, and then war ensued.

One particular event that is well known in Washington History is the “Whitman Massacre.” In 1836 the Whitmans established a Protestant mission next to the Walla Walla river, but at the time it was on the Cayuse Tribe’s land. In a similar fashion with Squanto and the Pilgrims, the Cayuse Indians showed the missionaries how to plant and cultivate crops and fed them food till the missionaries were able to harvest their own. Of course, the goal of Marcus Whitman was to covert many Indians to Christianity, and the Cayuse Indians were hoping for a prosperous relationship of trade and goods. Tensions rose higher and higher as more settlers came into their land taking portions without compensation.

It finally came to a murderous head when more than 4,000 settlers arrived in the region in 1847. They brought an epidemic of measles. The epidemic brought death to almost half of the Cayuse Indians living near Whitman’s Mission. The anger peaked because only a few of the white settlers died. The Cayuse Indians attacked the Mission killing Whitman’s and eight other people. It was a brutal attack that lead to five of the Indians being hung, but also bringing more division and the creation of the Oregon Territory.

In 1848 Oregon Territory was created. This included the future states of Oregon, Washington, and Idaho and a portion of Montana. Only a few years later, the people north of the Columbia river wanted to branch off and become a separate territory. According to Historylink.org, “On February 8, 1853, a federal bill was introduced to separate “Columbia Territory” from Oregon. Representative Richard H. Stanton of Kentucky, believing that the first president should be honored with the name of a state or territory, and noting that the federal capital already recognized the name “Columbia,” amended the bill to read “Washington Territory.” On March 2, 1853, President Millard Fillmore (1800-1874) signed the act. He dispatched Isaac Stevens (1818-1862) to govern the new territory, which until 1863 included Idaho.

President Grover Cleveland (1837-1908) selected the anniversary of George Washington’s birthday, February 22, 1889, to sign the act creating the state of Washington, but his proclamation of admission was not issued until November 11, 1889. The Great Event was celebrated with cannon fire, public and private meetings, parades, and endless oratory.”

https://www.historylink.org/File/5661

According to Ballotpedia, “The Washington State Constitution describes the fundamental structure and function of the state’s government. It consists of a preamble and 32 articles. This constitution is the second in Washington’s history. The first one was ratified in 1878, and the current version on October 1, 1889.[3]

The territory of Washington voted to apply for statehood in 1876. They sent Orange Jacobs, the territory’s delegate, to Congress to enable an act that would allow statehood after a constitution was ratified. The first constitutional convention met in Walla Walla, Washington to draft the constitution in 1878. When it was presented to voters in November, it was overwhelmingly approved.

This did not allow Washington statehood as Congress failed to act on the proposed constitution. The 1876 constitution was then used during the drafting of Washington State’s 1889 Constitution. A second constitutional convention met in Olympia, Washington from July 4 to August 22, 1889. This time, 75 delegates helped draft the constitution which was ratified on October 1, 1889. President Harrison issued a proclamation admitting Washington to the Union on November 11, 1889.”

https://ballotpedia.org/Washington_State_Constitution

Mary Salamon is the author of Government and Its People- How the Church can Participate in Government. She resides in the Pacific Northwest and was the publisher of Marysville Tulalip Life Magazine. She served as the Washington State Leader for the Governors Prayer Team and is the mother of three sons and five beautiful grandchildren. She is available for speaking engagements at local civic events, churches and conferences.

 

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Guest Essayists: Kimberly Porter and Donna Pearson

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The Constitution of North Dakota provided the final step on the road to statehood; however, it was not the only step on the pathway. The process required the acquisition of the Great Plains from France in 1804, as well as the subordination of Native Americans who had called the region home for centuries.

Assorted fur traders, trappers, missionaries and explorers, including Meriwether Lewis and William Clark, traveled the lands seeking to discover its riches: furs, minerals, a passageway to the Pacific Ocean, etc. Large numbers of European-Americans did not settle the region until the 1860s with greater numbers arriving in the 1879s and 1880s.

Beyond the purchase of the Louisiana Territory, the first major move towards statehood and the need for a constitution in North Dakota came with one of President James Buchanan’s last acts as president of the United States. On March 2, 1861, just two days before Abraham Lincoln took the oath of office, Buchanan signed a bill creating Dakota Territory. This territory would later be divided into the states of North and South Dakota, as well as portions of Wyoming and Montana. At the same time, the Nebraska Territory was modified to appear much like the state it would become.

Individuals did not flock to the lands which would become North Dakota. Not only did the Civil War rage elsewhere, but so did Indian uprisings, particularly one in Minnesota and Dakota Territory later referred to as the Great Dakota Uprising. Railroads had not yet crossed the region as they did in areas more centrally located, i.e., Kansas and Nebraska. Even the offer of free lands via the Homestead Act (1862) did not populate the land necessary to apply for statehood.

By 1870, the future state had a European-American population of approximately 2400, but within the next ten years, the European-American population grew to 37,000. For those who dreamed for statehood, the number of settlers rose dramatically in the decade of the 1880s. Taken shortly after statehood was achieved, the census of 1890 recorded a population of 190,000. Forever after known as the Great Dakota Boom, the explosion in population can be ascribed to an increasing influx of population from Europe, the presence of two railways across the entirety of the state, the end of incursions with Native Americans, and the claims made on more southern regions for free homestead land. The lands that became South Dakota had experienced many of these pressures a generation beforehand and commenced the pathway to statehood earlier. (See entry on South Dakota for details of that state’s path to membership in the federal union.)

Residents of the future South Dakota did not seek to join with their northern twin. There was a distinct feeling in the southern half that the northern portion was controlled by the railroads, was more strongly attached to Canada than the United States, and that its inhabitants were somewhat less desirable than those immigrants in the south. Hence, Dakota Territory did its utmost to attract homesteaders and businessmen to the northern half by positively publicizing the region throughout the United States and western Europe. Free pamphlets and even a 500-page book were dispatched upon request.

Also encouraging the movement towards statehood and a Constitution was the sense that young men in the state were overlooked in the political processes. Most governmental positions were appointed from Washington, D.C., leaving unknown westerners out of the bidding.

At this time, the Democratic Party held the movement to statehood in check. Knowing that any new state in the northern reaches of the nation would most likely vote for the Republican Party, President Grover Cleveland, a Democrat, did nothing to encourage the addition of northern states to the Union. The partisan debate concluded with the election of Republican Benjamin Harrison to the White House in 1888. Just before leaving office, Cleveland signed the Omnibus Bill, allowing North and South Dakota, Washington, and Montana the privilege of calling Constitutional Conventions as a precursor to statehood.

O July 4, 1889, 75 delegates descended on Bismarck, the territorial capital. Elected in units of three from twenty-five districts representing the extant population of North Dakota, the conventioneers heavily claimed the eastern third of the state home. This would prove a continuing force upon the state of North Dakota to the current day.

No member of the constitutional convention had been born in North Dakota, all were European-American, male, and under forty-five years of age. They were comparatively well-educated, with considerable representation from the legal and publishing professions. Also present in significant numbers were farmers, many of whom felt an allegiance to the Farmers’ Alliance and leaned towards the Republican party.

Forces upon the convention were plentiful. The federal government set the stage, initially denying the Dakotas the right of convening a Constitutional session, but also by requiring the future state to adhere to the Constitution of the United States, to be republican in form, and to provide land grants to support education. Railroads, often simply referred to as “corporations”, held sway as well. The Northern Pacific Railway as well as grain dealers, implement manufacturers, and banks could control the territory from a distance by acquiring political appointments. They were fully aware that controlling a state from within would be somewhat more difficult. A relatively weak government would be in their interests.

Farmers, a considerable portion of the convention delegates, could also claim relative power in Bismarck. Due to economic woes of the 1870s and 1880s, many had joined the Farmers’ Alliance, hoping to gain power in the marketplace as well as in the halls of government. The farmers presented the largest organized force at the convention. Control of the terminal market for wheat, the railroads and sources of credit were vital if their dreams were to become reality.

The farmers, businessmen, newspaper owners, attorneys and other assorted delegates gathered exemplar states’ constitutions for discussion and edification. All were from eastern locales, making a pattern for the over-creation of institutions. Only Major John Wesley Powell’s argument for the state to maintain possession of the waters usable for irrigation made the cut.

Advice for the construction of the state’s constitution did not only come from Powell of United States Geological Survey, it also came from the Northern Pacific Railway. Henry Villard, chairman of the Northern Pacific’s board of directors, asked Harvard Law Professor James Bradley Thayer to prepare a draft constitution for North Dakota. Submitted by a delegate from Bismarck, the document brought with it considerable debate.

Thayer’s draft shaped, but did not control, the Constitution that came out of the convention. Lively debate ensued on woman suffrage, jury reform, a unicameral legislature, the prohibition of railroad passes for public officials and union. None of the above were adopted. However, what did come from the discussions was a relatively moderate document with reformist ideas. Based in considerable distrust of corporations, the conventioneers determined to limit the power of the governor and the legislature by placing the power for decision-making in those realms into the hands of independent boards, as well as putting considerable legislation into the actual constitution. Citizens themselves carried considerable responsibility. Covering the vital issues took time and ink. The constitution of North Dakota is six times longer than the federal constitution.

As an example of legislating, the state constitution of North Dakota includes fourteen institutions and their geographical placement. Grand Forks, for example, is the mandated site for the state university, while Bismarck is delegated the capital, and Valley City and Mayville normal (teaching) schools. Not only were the vast number of institutions placed in the eastern portion of North Dakota, as befits the homes of the conventioneers, but their mention in the constitution ensures closing or moving any state institution to be exceptionally problematic.

An issue of considerable importance at the time of statehood was whether the manufacturing, sales and consumption of alcohol should be prohibited. After contentious debate, it was determined that the future-state’s citizens would have the opportunity to vote on the constitution, and whether to ban alcohol from the state. After 45 days, the assembly adjourned on August 17, 1889.

On October 1, voters ratified the constitution, 27,441 to 8,107.  Opposition to the constitution came primarily from those areas of North Dakota that felt cheated by the distribution of governmental institutions. The ban on alcohol was close.  Prohibition came to North Dakota by a vote of 18,552 to 17,393.  North Dakota was the first state to enter the Union as a “dry” state.

On November 2, 1889, President Benjamin Harrison had before him the constitutions of North and South Dakota. In a rare moment of levity for the president, he declared that neither state should have the pride of being the first or the last of the Dakotas to become a part of the Union. Accordingly, he stirred them a bit and signed his name, twice. The luck of the alphabet has given North Dakota the rank of 39th state and South Dakota 40th.

The constitution created in Bismarck, Dakota Territory, is essentially the one that the residents of North Dakota are called upon to abide to this very day. The Constitution lays forth the powers of the judicial, legislative, and executive branches, as well as the checks upon those branches. The legislature is permitted to meet only 60 days each biennium, unless an emergency calls them together. This check is to limit the development of a professional class of politicians in the state, and to ensure that the officials elected to the legislature maintain a connection with their electors.

The governor is specifically prohibited from influencing the vote of any member of the legislature via promises to sign or veto legislation, or to provide or deny an appointive office. The numerous independent boards of control, as well as a listing of 35 subjects on which the legislature is expressly forbidden to interest itself, keeps the state’s electoral structure somewhat weak.

The weaknesses of North Dakota’s constitution are deliberate as they reflect a population fearful of outside control, excessive debt, and professional politicians.

Kimberly K. Porter is a professor of history at the University of North Dakota. She focuses her efforts on United States history, particularly the 1877-1945 era, with an eye to agricultural and rural issues, including the history of North Dakota. Dr. Porter is engaged in writing a monograph exploring radio in pre-1945 rural America.  

Dr. Donna K. Pearson is Associate Dean of Student Services and Assessment, a professor in the College of Education and Human Development at the University of North Dakota (www.und.edu) and teaches Social Studies Methods in the Department of Teaching, Leadership and Professional Practices. Her research interests include inter- and cross-cultural competencies, international/comparative education, civic and international professional development. Additionally, she co-authored Interculturalization and Teacher Education: From Theory to Practice published by Routledge of Taylor and Francis.

 

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Guest Essayist: Amanda Hughes

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For many Americans, when the term “amendment” is mentioned, our United States Constitution often comes to mind. Among the document’s twenty-seven, most are aware of the First Amendment, especially the part about free speech. Another popular amendment is the Second Amendment: the right to bear arms. These Amendments to our United States Constitution have even gained nicknames such as “1A” and “2A.”

Unfortunately, beyond the popular terms of our national Constitution, too little understanding exists about it, including reasons for limiting changes to the document. This is true as well for our state constitutions, though amended more often. Unless a major news story runs where a constitutional topic goes viral, little more is studied to gain a complete context especially for the true meaning and history behind the Framers’ intentions.

No doubt, words have consequences. Our Founders knew changes to the United States Constitution would be necessary, and carefully thought through how these changes should be accomplished.

For example, they understood the wording in the Declaration of Independence “We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights” foreshadowed and necessitated an eventual end to slavery.

The process the founders set up to change the Constitution is grounded in the knowledge that passions of the moment can often lead to self-destructive acts. The founders were students of history, and understood that well-intentioned appearances, as if modern or forward looking, may invite a repeat of proven failures. An obvious example of this type of repetition is found in the popular sentiment of some of today’s younger generation to “try” socialism in America, an idea only deemed positive for those who do not study socialism’s history.

There is much confusion and misunderstanding about our U.S. Constitution. Some advocate getting rid of it or overhauling it to the point of unrecognition.

Discernment From History

How much should our national, United States Constitution get amended? How often should state constitutions be amended? The answer lies in world history.

America’s Founders were so well read, so thoroughly studied in world history that they understood what worked in governments and what did not, what caused governments to rise or fall. They saw patterns, consistencies resulting from choices regardless of where attempted in the world. Each would have a positive or negative end based on natural, immutable truths. For example, they learned that power must be divided among the people. They learned why power in the hands of a few created tyrannies, but allowing for many governments would divide power broadly and let the people be their own government. This also let the people protect themselves from the government they elected.

The 27 amendments in nearly 232 years since the signing of our United States Constitution reveals few revisions. It sets up a foundation for a national government to preserve the workings of each individual state, with their own governing bodies, while uniting the states as one nation.1

Our states, for the most part, used their early adopted constitutions to set up a basic form of government. Later state constitutions received more ability to make amendments due to amendment processes added.

The State Constitutions Project conducted with the National Bureau of Economic Research and the Economics Department of the University of Maryland through the office of Professor John Wallace cites there have been nearly 150 state constitutions, amended roughly 12,000 times, with both constitutions and amendments containing about 15,000 pages.2

Any time amendments to our national Constitution or state constitutions are suggested, serious consideration must be given. Learned history rewards its students with discernment. So what will the altering of words of our national and state constitutions truly mean and what consequences will come as a result of changes made?

States grapple over whether to amend their constitutions regardless of method. Legislatures recognize that making changes might conflict with designing appropriate laws regarding public safety or health.3 The more amendments are made, the more difficult it is constitutionally to respond with what lawmaking citizens really want. Difficulties arise in having to work around expanding changes that should be made through the legislative process with voter participation. Continual changes to a state constitution turns a framework for governing into muddied, burdensome, unnavigable waters without clear boundaries from which to design or maintain representative government.

How the amendments affect state and local governing over time, and especially impact the ability of citizens to remain involved in their own government, must carry the weight of steady caution for the states. The more changes, the more difficult it can be, more convoluted, quickly turning accountability and control by the governed into control of the governed.

When the early American governing foundation was formed, voters agreed to abide by it, doing what provides stability among the systems formed and approved by both those in leadership and those who would be governed by it. The system was formed where those in leadership would have to abide through positions of serving, by their own very laws. At least, it is supposed to be that way if we maintain it. Within these foundations the people protect their own freedom, including their own government by adopting societal, bedrock standards that work and holding to them.

Worth Preserving

Without knowing whether Americans born after our Founders would hold onto what was started for the very lives of those who would come behind them, “ourselves and our posterity,” our founders risked their own lives and fortunes to produce the United States Constitution. Believing it so crucial to accomplish, they placed in its Preamble to “secure the Blessings of Liberty” so that the words of the entire document would do so for every American. They knew some changes might be needed, but argued over, and crafted with great caution, a document that could withstand errant people. It is so good a national constitution that it is the oldest, still operating constitution in existence in the world.

Risking everything while depending on a growing nation to hold onto religion and morality, the Constitution Framers worked hard to design a document that would stand the test of time for Americans to keep their republic because it would take a moral people to maintain a country based on free will of the individual. Any other adopts a tyranny, meaning control over each individual’s choices so that people become as property, disposable, viewed with little to no value. This is what America’s Founders wanted to avoid, aiming not to repeat what they escaped. With that warning in mind, they based the Constitution upon lasting institutions, first principles which are never outdated.

Our national Constitution is not a document to be worshiped since it was crafted by fallible people. It is, however, an integral part of America’s history potent today because of the governing stability it provides. It deserves preserving as a solid foundation to protect Americans today from falling into the public policy traps it was written to prevent. America takes this for granted at her own peril.

Our nation works because of the type of Constitution we have adopted as a country and because of the type of government it sets up for our states and especially for each, individual American. These are worth preserving and only altering with the utmost care and discretion.

Amanda Hughes serves as Outreach Director, and 90 Day Study Director, for Constituting America. She is author of Who Wants to Be Free?, and a story contributor for the anthologies Loving Moments, and Moments with Billy Graham.

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1Jennie Drage Bowser. “Constitutions: Amend With Care” State Legislatures Magazine, Sept. 2015.
http://www.ncsl.org/research/elections-and-campaigns/constitution-amend-with-care.aspx

2John Joseph Wallis, NBER/University of Maryland State Constitution Project. www.stateconstitutions.umd.edu

3Garner, James Wilford. “Amendment of State Constitutions.” The American Political Science Review, vol. 1, no. 2, 1907, pp. 213–247. JSTOR, www.jstor.org/stable/1944385.

Guest Essayist: Will Morrisey

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Having felt the pinch of rule within an empire by a would-be absolute monarch wielding the powers of a modern state, Americans needed to solve two problems at once. United, they could depict themselves as a rattlesnake telling the world, “Don’t tread on me.” Disunited, severed into thirteen pieces, as depicted in an equally famous illustration of the period, they would die, prey to one or more of the surrounding empires. Americans needed a modern state to defend themselves against other modern states. Divided, they would be conquered, even as the American Indian nations and tribes had been, and would continue to be conquered, whenever they attempted to resist ‘modernity.’

At the same time, they had won their independence in resistance to tyranny, in resistance to an overbearing modern state that denied them their rights not only as Englishmen but as human beings. The natural rights of life, liberty, and the pursuit of happiness require self-government, civil society. Civil or genuinely political life, the association of citizens who share rule with one another, requires small associations—families, towns, city-states. How can civil society exist in a large, centralized, modern state, the very thing needed for self-defense in a world dominated by such states—a ‘Eurocentric’ world in which men armed with the instruments of modern science, very much including the new, Machiavellian science of politics, of statism, was already extending its tentacles onto every continent? Europeans ruled not only with gunpowder-propelled projectiles but with a new form of ruling organization, one sufficient to divide, conquer, and perhaps most crucially rule even a vast empire like China, or a subcontinent of such staggering diversity as India.

Statism and self-government at the same time: that sounds very much like a circle never to be squared. They found their answer in another institutional device: federalism.

Writing only a few decades before the American founding, the political philosopher Montesquieu had written, “If a republic is small, it is destroyed by a foreign force; it is destroyed by an internal vice”—typically, corruption. What is needed is a “constitution that has all the internal advantages of republican government and the external force of a monarchy,” namely, “the federal republic.” Each element of this republic should itself be commercial-republican—peaceful and moderate, not a warrior-state like that of Alexander the Great. Each element should have liberty, which “in no way consists in doing what one wants” but rather in “having the power to do what one should want to do and in no way being constrained to do what one should not want to do.” What one should want to do is to observe “the law of nature, which makes everything tend toward the preservation of species,” the “law of natural enlightenment, which wants us to do to others what we would want to have done to us,” and “the law that forms political societies,” which aims at the perpetuation of those societies. Certain moral virtues inhere in liberty itself. Republicanism consists of citizens who rule one another reciprocally, doing to one another as they would have done to themselves; federation enables republics to follow the political law of self-perpetuation.

If one were to draw a diagram representing a modern state, it might look like a wagon wheel: a solid border or rim; a central government or hub; strong but limited lines of control or spokes extending from the center to the border, reinforcing the border but emanating from the rim. But if civil society consisting of local associations and institutions exists in the spaces between the spokes, how can this state be republican, an association of self-governing citizens, and not mere subjects?  A return to feudalism would solidify the spaces, widen the spokes at the expense of weakening the hub.  Federalism retains the integrity of both the central state and the constituent, smaller states. In the United States Constitution, the central government gains certain enumerated powers, including the power to raise revenues from within the territories of the states without the consent of the state legislatures and governors and the power to regulate interstate commerce. The states retain powers not enumerated, albeit limited by their republican regimes, guaranteed by Article IV, section IV. State governments were assured a voice in the councils of the central government by their power of electing two representatives each to the United States Senate. The peoples of those states had their voice in the House of Representatives, elected by popular vote within voting districts located within the boundaries of each state. Additionally, of course, the people of each state also elected their representatives to the legislatures which chose the U. S. Senators, making the entire system republican either directly or indirectly. Neither the state governments nor the central governments exercise sovereignty over the people; James Monroe titled his book, The People the Sovereigns.

To return to the image of the wheel, in a federal-republican state we see the powers of the central government as strong filaments running through the spokes, which are the constituent states of the federation. If one shifts the image from a wheel to the more dynamic example of a power grid, the powers of the sovereign people are energies that run through intertwined, mutually strengthening wires. One wire depicts the government of your state; the other depicts the government of your country as a whole—the central government. Both derive their energy from the same source, the people, united through the political union of their states, each itself a political union encompassing smaller ‘unions’ from families to civil associations to counties.

The sovereign people in a republican regime will rule and be ruled, therefore more likely to do as they would be done by. Their way of life will be genuinely political, civic, fostering habits of mind and heart that incline toward civility because each citizen knows he needs the others and wants to do harm to none of them. At the same time, such a people will have the strength to defend themselves against other states and empires, far more centralized and far more ambitious for conquest.

For more than a century, the constitutional republicanism established by the Founders increasingly has given way to administrative government at the national, state, county, and even the local levels. As a result, Americans have needed to deliberate together less. The decline of civility in what remains of American political conversation may well originate in the decline of genuine civic life, genuine self-government, as part of the American way of life.

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; 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.

 

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Guest Essayist: Will Morrisey

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Why have ‘states’ in the Union, anyway? True, the colonies predated the United States, the colonies became states, and ratification of the Articles of Confederation and the United States Constitution proceeded on a state-by-state basis. But many municipalities preceded the states; some existed before the British wrestled control of them from the French. And, as Gary Porter explained in a recent essay here, courts in most states regard all or many of the municipalities to be creatures of the state for legal purposes, even if historians beg to differ. Why not treat states the same way? Whatever practical barriers to this there may be, what is wrong with it in principle? After all, many countries around the world have commercial-republican regimes while nonetheless treating the provinces as, well, provincial. Why shouldn’t we do the same?

If the distinctive human characteristic is the ability to speak and to reason, then what is good for such a being must not only allow but encourage it to exercise that ability, just as it must be good for a horse to have room to run. To live in societies ruled by tyrants terrorizing their subjects with brute force must be bad for human beings, somehow beneath their real nature—hence the adjective ‘brute.’ By nature, human beings belong in civil societies, societies in which they may speak and reason together, deliberate with one another on what they should do, how they should act. Old-fashioned mothers would tell unruly children to ‘be civil,’ to ‘keep a civil tongue in your head.’ A civil tongue is one indirectly but closely attached to a reasoning brain, a brain more fully developed in accordance with its nature than the brain of a madman or a dolt, to say nothing of a barking pit bull or a chorusing frog.

Civil society begins in the home. Parents command children, ‘for their own good.’ But father and mother themselves properly form a civil relationship, ruling one another by mutual consent, by shared responsibilities, authority, and obligations. Outside the home, what we call civil society works the same way, as fellow citizens form businesses, churches, clubs, and schools. Families and civil associations alike govern themselves deliberately, reasonably—insofar as they are genuinely civil, institutions fitted for mature human beings. Children learn to do the same thing, choosing up sides for games, ‘ganging up’ (for better or for worse), imitating the adults (also for better or for worse).

You learn to be civil in small groups. The earliest political societies were small, outgrowths of extended families or clans which united with one another for convenience and protection. The polis or city-state rules itself, perhaps as a democracy, more often as an oligarchy, sometimes as a monarchy. Whatever its regime, the city-state occupies a small territory and consists of a small population; in ancient Greece, they seldom consisted of more than 30,000 souls. Given this small size, political life mattered. There was nowhere to hide from whomever ruled; whether it was the one, the few, or the many, whether he or they were good or bad, the ruler(s) could and did reach out and in many respects determine your way of life. No adult could be indifferent to politics because everyone felt the effects of political rule.

City-states faced a serious, ultimately fatal threat. If children and adults like to ‘gang up,’ what is to prevent the most ambitious, if perhaps the less reasonable, among them from gathering together not merely to tyrannize the city-state but to conquer other city-states? If, say, a tyrant gains control of Macedonia, masters the nearby city-states, and sets sail for Greece, what is to prevent him from conquering it? In the event, nothing, as Alexander the Great proved not only in Greece but throughout the ancient Mediterranean world. As did many others: The Old Testament is full of Egyptians, Ethiopians, Assyrians, Babylonians, Persians, the New Testament full of Romans. A small people could retain its self-government among the empires only if God chose to protect it. It couldn’t go it alone.

What is more, small places foster political passions as much as they foster rational deliberation. If I care intensely about who rules me, because whoever that is he will make me feel his rule, I may gang up with others to make sure that we are the hammers, not the nails. In The Federalist, Publius remarks that small republics were as often as short in their lives as they were violent in their deaths. When not ruined by foreign conquerors, they succumbed to suicide-by-faction. Although human beings may be rational by nature, they often fail to live up to their nature. “Why has government been instituted at all?” Publius asks. “Because the passions of men will not conform to the dictates of reason and justice without constraint.”

The problem only intensified in the modern world, the world of Machiavelli. As an official of the Italian city-state of Florence, Machiavelli became impatient with smallness, with puny states which squabbled with one another, incapable of extending their power beyond their own small territories. He conceived not so much of another empire but of lo stato, a governing body extending over the whole of the Italian nation. Lo stato might be governed by one or many, be a principality or a republic, but whichever regime it had, it would be able to extract substantial numbers of soldiers and revenues from all parts of Italy.  Even the larger nations of Europe—the French, the Turks—did not have lo stato; they were feudal societies, in which monarchs reigned but found themselves constrained by ‘the few,’ by titled aristocrats, by churches or mosques—by elites of various descriptions, all bent on aggrandizing themselves at the expense of the central government. Machiavelli recommended what we would now call a strategy of ‘state-building’—of bring ‘the few’ to heel, extending the administrative apparatus of the central government into the provinces and subordinating those provinces to it. Once a few rulers took the advice he preserved in his books (he died powerless), once the Tudors in England and the Bourbons in France began to put an end to feudalism, all European nations needed their own states, if they were to avoid conquest. On that continent, the Hohenzollern-Bismarck-Prussian forging of the many small German states into one nation-state proved the most salient fact of the nineteenth century, and the most ominous fact of the first half of the twentieth century. Without states of their own, European nations would have fallen under German rule, as Germans aimed at reconstituted a new and much more malevolent form of the Holy Roman Empire, no more holy or Roman than the original, but very much more an empire.

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; 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.

 

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Guest Essayist: Jennie Jones

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Few factors are more fundamental to our early state constitutions, declarations of rights, and bills of rights than the Christian theory and practice of the right, or duty, of resisting injustice and tyranny.  The right of resistance is rooted in the Biblical principle summarized by the Apostle Peter: “We ought to obey God rather than men” (Acts 5:29).  Civil government is one of the kinds of governments ordained by God (others being self-government, family government, church government, and employment-based government), and the “powers that be” are ordained by God, so every soul is to be subject to them, not to resist them (Romans 13:1,2).

But it does not follow from this that the ruled are obligated to obey absolutely everything that the rulers of civil government (or any kind of government) command.  Being ordained by God does not authorize government officials to usurp the place or authority of God.  Being ordained by God does not exempt the ruler from the standards by which all men’s words and actions are judged: the standards decreed by God in His law.  Furthermore, the ruler, like everyone else, is sinful: in the very core of his being, he longs to replace God with himself and God’s standards of good and evil with his own (Genesis 3:5).  Neither the providence of God nor the judgment of his Christian peers enables any man, or any ruler of civil government to act without sin in all that he does.  These highly unflattering truths are hard sayings, but they are essential to good government.

Moreover, the ruler of civil government is not to use the power of the sword to be a terror to good works but to evil deeds: he is the minister of God to the ruled for good, not for evil (Romans 13:3-7).  The ruler is God’s minister, or servant, not his own.  The rulers and the ruled are under the authority of God and His law.  God’s law is the authoritative standard that defines good and evil, the ethical laws of “nature,” and love.  Hence the Apostle Paul summarizes God’s law as the standard by which men can know that they are following the law of love and working no ill to their neighbors (Romans 13:8-10).  The ruler who enacts evil laws that violate God’s standards of law exceeds his authority, rebels against God, and violates the terms of his ministry under God.  To the extent that he violates God’s legal standards he is unworthy of honor, for Christians are not bound to honor or obey that which is evil (or he who commands that which is evil) but rather that which is good.[1]

A ruler who systematically violates God’s law—God’s standards and definitions of justice (and injustice)—is rebelling against God.  He is systematically scrapping God’s standards of good and evil and replacing them with his own.  He is a tyrant.

A tyrant is to be resisted by his subjects, and if he persists in his tyranny, may be removed from office.  Medieval, Reformation, and later Christian theorists differed about who should undertake this process of resistance and (if necessary) revolution.[2]  Most held that the “lesser civil magistrates,” lower-ranking civil government officials—who are also among the “powers that be” who are ordained by God—are to lead the people in this process of resistance (the constitutional theory).  Some maintained that the people, private individuals or the majority of citizens, are to do what is Biblically permissible to resist or overthrow the tyrant (the private right theory).  Such was a long tradition of Christian resistance theory dating back to the medieval period.  It was:

  • fundamental to the action of the barons led by Archbishop Steven Langton, who gave England the Magna Carta in 1215;
  • revived in the Reformation and Counter-Reformation;
  • practiced in the Dutch war for independence from the Spanish tyrant Philip II;
  • exemplified in the Petition of Right (1628);
  • taught and practiced in the English Civil Wars (1642-1651);
  • maintained (after a fashion) against the king in the Glorious Revolution (1688);
  • asserted in the English Bill of Rights (1689);
  • continued in the English colonies in America;
  • and preached in sermons before congregations and public officials during the movement to resist British tyranny.[3]

The right to petition rulers for a redress of grievances was a basic part of this tradition of Christian resistance theory.  The colonies followed this theory in resisting the king-in-Parliament and in their War for Independence.  This theory continued to be widespread in early America before and long after the framing and ratifying of the Constitution of the United States (and, of course, of our national Bill of Rights).  At least six states—New Hampshire, Maryland, New Jersey, Pennsylvania, Virginia, and Massachusetts—stated this right explicitly in their fundamental laws, and thereby implied the people’s right to use all legitimate means of resistance endorsed by that tradition.  The Maryland Declaration of Rights (1776) phrased it pointedly:

IV. That all persons invested with the legislative or executive powers of government are the trustees of the public, and, as such, accountable for their conduct; wherefore, whenever the ends of government are perverted and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old or establish a new government. The doctrine of non-resistance, against arbitrary power and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

Where not stated explicitly, this doctrine was implicit in all the states’ constitutions and declarations—which owed their existence to exercising precisely such a conviction.

The right and duty of the states to resist the central government was originally intended to apply to future civil government officials. The Framers gave the states the means of protecting their people and the only legitimate means of changing the Constitution—the amendment process and convention of the states stated in Article V. That right and that means still apply. State and local officials have a duty to resist injustice and tyranny imposed upon their people by our central government. American citizens need to remind not only candidates for federal office, but also candidates for state office, of this fundamental constitutional reality, right, and duty. That is the only way (humanly speaking) we will reclaim and preserve our freedom.

Jennie Jones, Assistant Professor, American Government and History, Weatherford College

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[1] Romans 13:1-7 is frequently misinterpreted.  Including verses 8-10 of Romans 13 makes it easier to avoid misinterpreting the first seven verses, but a reading of the Rev. James M. Willson’s The Establishment and Limits of Civil Government; An Exposition of Romans 13:1-7 (Powder Springs, Georgia: American Vision Press, [1853] 2009) should eliminate all controversy over this crucial passage, for it destroys the misinterpretations that were fashionable in the early nineteenth century and which are too fashionable now.

[2] Revolution to depose the tyrant, not revolution to overthrow the religious and social or economic order, is the intention here, for to overthrow a religious, social or economic order based upon Biblical standards of justice would be sinful and unjust.

[3] See Quentin Skinner, The Foundations of Modern Political Thought: Volume Two: The Age of Reformation (Cambridge: Cambridge University Press, 1978); Julian H. Franklin, trans. and ed., Constitutionalism and Resistance in the Sixteenth Century: Three Treatises by Hotman, Beza and Mornay (New York: Pegasus, 1968); Junius Brutus, A Defense of Liberty Against Tyrants; or, of the Lawful Power of the Prince Over the People and of the People Over the Prince: Vindiciae Contra Tyrannos (St. Edmonton, Alberta, Canada: Still Waters Revival Books, 1989); and Richard L. Greaves, Theology and Revolution in the Scottish Reformation; Studies in the Thought of John Knox (Grand Rapids: Christian University Press, 1980).

Guest Essayist: Andrew Langer

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Sovereignty is the very essence of what makes a “nation” a “nation”—a free and independent state in which the people of that nation exercise total control over the governance of that nation.  Clear and enforceable borders are an essential element of that sovereignty.  Without them, the nation itself cannot be defined, and the sovereignty of that nation falls as a matter of course.

These truisms have been bedrock concepts of both political science and international law for centuries, essentially tracing their roots to the Peace of Westphalia of 1648.  A nation’s sovereignty is, in fact, enshrined in the central body of international law, the United Nations Charter, which says that, “nothing should authorise intervention in matters essentially within the domestic jurisdiction of any state.”

But without enforceable borders, what determines the “domestic jurisdiction” for a state? And just how can a state govern itself if its borders are not secure?

Europe, and the EU member nations have been grappling with these issues—especially with the waves of refugees from North Africa and the Middle East.  Once a refugee arrives in Southern Europe, that refugee essentially has unfettered access to other EU member nations, which has created huge problems in public policy—from managing essential services to crime to dealing with Europe’s well-known social welfare state.

This was an important factor in Great Britain’s decision to leave the European Union—the pressure being placed on the United Kingdom to further open their borders—as the British people were facing a huge threat from immigrants sneaking through the Chunnel from refugee camps formed right outside it.

It is not as though the world hasn’t been well-aware of these problems for years. In fact, in the late 1990’s, celebrated free-market economist Milton Friedman remarked in the pages of the Wall Street Journal that, “It’s just obvious… you can’t have free immigration and a welfare state.”

This is not to say that a nation should have closed borders—far from it.  One of the things that makes America the most exceptional nation on the planet is that anyone can migrate here (legally) and become an American.

But when you have a combination of a labyrinthine immigration system and you essentially fail to punish illegal migration, you create massive disincentives towards doing the right thing.  And you exacerbate those disincentives when you are promising all-manner of giveaways to those who are considering the arduous journey of migration.

However, the impact to the public treasury is only one aspect of this.  An essential aspect of sovereignty is the ability of a nation to control the time, manner, place, and method of migration.  This allows a country to figure out the best way to absorb new populations, to create policies to assimilate those who migrate into a nation’s legal and political culture, and to ensure that the overall security of that country isn’t compromised.

Otherwise, what ensues is the undermining of the very things that make that nation what it is.

Founding father (and law professor to Thomas Jefferson) George Wythe believed fervently, for instance, in the importance of an educated populace.  Without that education, without that understanding of who we are as an American people, the republic would collapse.

So, now assume that you have a situation in which illegal migration is incentivized.  You have a little in the way of punishment for those who migrate illegally, it is an inordinately expensive proposition to remove the millions who are illegally present.  You have made it easy for those ineligible to participate in the public decision-making of this nation to participate.  You are apportioning representation within the political process in a manner which includes those who have no legal voice, so that the voice of the citizenry is diminished. All the while, those who are within a nation illegally may not have any knowledge, understanding, appreciation for or allegiance to the principles upon which that nation was created.

As Margaret Thatcher quipped, “When you rob Peter to pay Paul, you will always have the consent of Paul.”  And when you have an influx of illegal immigrants into a country and give them, through both action and inaction, a voice in the political process, it is a shortcut to the destruction of that country.

Without borders, sovereignty ceases to exist.  Without that sovereignty, there is no nation.

Andrew Langer is President of the Institute for Liberty and host of the Andrew Langer Show on WBAL NewsRadio 1090.

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The Declaration of Independence: A Transcription

From the National Archives website: http://www.archives.gov/exhibits/charters/declaration_transcript.html


IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

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Guest Essayist: Michael C. Maibach

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The Roots of Our Debt & Dysfunction Today

President Franklin Roosevelt:  “Fortunately for the stability of our Nation, is was already apparent that the vastness of the territory presented geographical and climatic differences which gave to the States wide differences in the nature of their industry, their agriculture and their commerce… Thus, it was clear to the framers of our Constitution that the greatest possible liberty of self-government must be given to each State, and that any national administration attempting to make all laws for the whole Nation, such as was wholly practical in Great Britain, would inevitably result at some future time in a dissolution of the Union itself.  The preservation of this “Home Rule” by the States is not a cry of jealous Commonwealths seeking aggrandizement at the expense of sister States.  It is a fundamental necessity if we are to remain a united country.”

After winning a war against the world’s greatest power, our Founders wrote what is today the world’s oldest, and many consider, its best Constitution.  Yet 70% of Americans now say we are on the “wrong track” because Washington has become highly dysfunctional.  The list of federal failures is now painfully familiar:  Wall Street bailouts, failed “Stimulus”, “Fast and Furious”, “Cash for Clunkers”, corruption in the IRS, FBI and Justice Department, perhaps 20 million illegal immigrants, crisis at the border, the impending collapse of Social Security, Medicare and the Affordable Care Act, Congressional gridlock… and $22 trillion in debt!  To Americans, these are clear signals of systemic failure in the federal government.  We owe it to our Nation to examine how we fell off the wise course our Founders charted for us in 1789, and what we might do to improve self-governance.

A clue to our failure is found in our Nation’s name:  The United States of America.  We are a nation of 50 states – not one central government as found in France or Egypt.  The more we’ve centralized taxation, regulation and power in Washington, the more we have witnessed systemic failure.  This is because most problems are best addressed by local and state government – as Jefferson told us.  The ideas of federalism and subsidiarity need to become fashionable again.

Federalism and the decentralization of factions (interest groups) were at the heart of the Founders’ plan (Federalist #10 and #51/Madison).  Governmental duties were best divided between federal (national) and state governments.  The Founders also believed government should be limited, supporting “life, liberty and the pursuit of happiness” without managing its every aspect.  They assumed self-reliant citizens of strong character and durable families would do much of society’s heavy lifting through businesses and voluntary civic organizations serving others.

During the ratification debates of 1787-88, James Madison wrote in Federalist #45 of American federalism: “The powers delegated… to the federal (national) government are few and defined. Those which remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects such 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.”

The government in Washington was to look outward at other nations and markets and keep harmony among the states.  The 50 states were to look inward towards internal improvements and citizen services.  Here are the major issues our President and Congress face as their Outward Agenda today:

  • National Security:               Russia – North Korea – China – Cyber Attacks… Iran & the Middle East.
  • International Trade:           China –  Steel & Aluminum Tariffs – BREXIT – EU Trade…
  • North America:                   Trade – A new NAFTA – Border Security & Illegal Immigration.
  • US Immigration:                 DACA & 20+ Million Illegal Immigrants – Failing Federal Policy.
  • Mexico:                                 Illegal Gun & Drug Running + Sex Trafficking + Cartel Violence.
  • Latin America:                     Marxist Regimes in Venezuela, Nicaragua & Cuba. MS-13 Gangs.
  • EU:                                         US-EU Trade – Euro Crisis – EU Internal Strife – Future of NATO.
  • North Korea:                        Missile Tests & Nuclear Weapons.
  • Russia:                                   Possible New Cold War.
  • Israel:                                     Failed Palestinian Peace Talks – New US Embassy in Jerusalem.
  • Africa/Libya/Sudan:             Failed States – Civil Wars.
  • Syria:                                      A Seven-Year Civil War – Islamic State – ISIS.
  • Terrorism:                             Across many continents…
  • Egypt & Turkey:                    Uncertain Allies.
  • Iran:                                        US-Iran Tensions – Threat of a New Nuclear Power.
  • Iraq:                                        Another Failed State?
  • Pakistan:                                Strained Relationship with India & the US.
  • Afghanistan:                          Eighteen Years of War, No End in Sight.
  • India:                                      The Promise of Our Improved Relationship.

The Founders (and we) might ask how our current leaders in Washington can effectively and prudently deal with this formidable array of external challenges? But now let’s look at Washington’s Inward Agenda today:

  • Social Security:                       Funding begins to fail in 2030.
  • Medicare:                                Begins to fail in 2024.
  • Dodd-Frank:                            Financial services regulations: 20,000 pages.
  • Affordable Care Act:              US health care scheme now failing.  20,000 pages, 18% of GDP.
  • Justice & FBI:                           Major charges of corruption.
  • IRS:                                            Administers US tax code of 76,000 pages.  2012-4 NGO scandal.
  • Farm Bill:                                  Huge farm subsidies. Food stamps for 30+ million Americans.
  • Education:                                US Ed Dept. requires all K-12 schools to complete 30+ reports annually.
  • College Loans:                         US Gov’t makes all college loans.  Student debt: $1.5T > credit card debt.
  • Housing:                                   US Housing & Urban Development Dept. = $40b annual budget.
  • Minimum Wage:                     Also dealt with at the state level, closer to regional economic realities.
  • Unemployment Insurance:   Partially managed at the state level.
  • Transportation:                       Highways, bridges, ports, rail, urban transit… all in need of major repairs.

Our Founders would be astonished at the domestic focus of our $4T federal budget today:

  • OUTWARD: 42% of Federal Budget                  INWARD:  58% of Federal Budget
  • 20%   –  Defense                                                        22%   –  Social Security
  • 15%    –  Federal Agencies                                        23%   –  Medicare + Medicaid
  • 7%      –  Interest on a $22T National Debt           13%   –  Grants to the States

The argument here is a “managerial argument” for a return to federalism.  Washington has “too much on its plate” to do any of its work well.  Moreover, Congress does not have the time or staff to effectively oversee this colossus of a government.  Indeed, Congress has only passed one annual federal budget (“regular order”) in 20 years!  The Founders would not see the wisdom in a federal Department of Housing, or of Education that deals with K-12.  Housing and K-12 schools are best left to the states…

Much of the work now done by Washington can be better managed by our 50 states and/or local governments, or not done at all.  Outsourcing of other federal work would allow the injection of competitive bidding, merit pay, and innovation in technology and service delivery.  Today virtually no one can fire a federal employee – even if they fail to show up for work!  Federal jobs have become life-time sinecures, while average tax-paying Americans have less job security than in the past.

Absent a major move away from the federal income tax system such as a national sales tax, a financing formula to return to American federalism might roughly break this way:  The IRS would leave a certain percentage of the federal income taxes it collects within the states where collected.  The percentage would be decided by the kinds of federal services that would be largely transferred to the states.  Those states that have a healthy business climate would see their share of IRS funds grow – rewarding their positive policies for growth and job creation.  Federal funds left in each state would be allocated by the 50 state legislatures, which would move much of this funding to counties and cities for such things as K-12 education, housing, food stamps, intra-state transportation infrastructure, and other “inward looking” human services.  Healthcare engagement would remain for now in federal hands, so deep is it imbedded in our lives via Medicare, Medicaid, CHIPS, the VA, et al. While initial transfers back to the states would be modest, e.g. most all HUD services and programs, mindsets among citizens, the news media and elected officials would gradually shift to more robust “distributed government” – to coin a term we used as the mainframe computer world gave way to the PC and then mobile hand-held devices.  Ironically, while the power of information technology has become more and more decentralized and empowering, Washington DC has centralized more and more of our government.  We want to reverse this trend and reflect what is happening in the Age of Information.

There is also a “societal or political argument” for a return to American federalism.  Before Roe vs. Wade in 1973, states had 50 different abortion laws.  And in turn, before that 1973 decision, the entire career of a Supreme Court nominee was reviewed by the US Senate as to their suitability for this lifetime judicial office.  Since Roe in 1973 our Nation’s politics have become sharply and continuously divided on the question of “life”.  Given this, the central question asked about all new Supreme Court nominees is their view on abortion.  Supreme Court Justice Ginsburg has suggested that our Republic might be better off if this issue had been left to the states, in keeping with 150+ years of American jurisprudence.

Health care is another highly acrimonious “nationalized, politicized issue” at the center of Washington rancor since the Affordable Care Act was enacted.  An alternative to a single federal health care law such as “Medicare for all” would be to allow each state to fashion their own solutions.  If Massachusetts chose to have a single payer system, so be it.  If Utah chooses a free-market health care system, that should be their right.  We’ll then see by way of “the laboratories of state government” what works for people and providers, and what fails.  Real world experiences are always superior to theories and “one size fits all” approaches.  Surely New York will have different health care solutions than Wyoming.  And other public services like K-12 education can best be left to the states and local governments – and parents.

A Renewal of American Federalism can and will return many of these “inward looking” issues to where they belong in the American regime.  Washington can then more effectively deal with Iran, ISIS, North Korea, China, NAFTA, the current crisis at the border… and other enormous “outward looking” challenges.  The Congress would then have more time to oversee federal agencies and pass a real budget.  To enhance oversight even more, perhaps the Congress can enact a two-year federal budget during its first year and dedicate the second year of each Congress to oversight.  Indeed, a new joint Congressional Oversight Committee might be formed which by its rules has but one mission – looking for ways to reduce or phase out parts of the federal government that are no longer useful.  Every American company that is competitive constantly looks at ways to re-direct people and resources.  Congress never seems to focus on what the federal government can do less of…

When federalism fails in a large republic, the success of the government itself comes into question.  The Founders knew the enemies of our republic were factions demanding more and more from government and their fellow citizens.  These include farmers, seniors, all sorts of industries, homeowners, doctors, patients… students.  Once factions are nationalized, their combined negative effects on the economic and political health of a Nation can be harsh and in the case of health care, financially catastrophic.  National elections become bidding wars for the support of various interest groups.  Our $22T national debt is stark evidence of this, as our leaders print money rather than make difficult choices.

In Federalist #10, Madison wrote: “Among the numerous advantages of a well-constructed Union [federalism], none deserves to be more accurately developed than its tendency to break and control the violence [damaging effects] of faction…”  To return to the Founders’ plan, we must renew American Federalism and rethink what Washington is responsible for in an era of debt, flat demographic growth, and intense global competition.  Civic success begins with virtuous citizens rising above the factions of which they may be a part to support what is best for our Nation.  It is time to return to American Federalism.

Michael C. Maibach resides in Alexandria, Virginia.  He is a Board member of the James Wilson Institute, the Washington, Jefferson, Madison Institute, and the Caesar Rodney Institute of Delaware.

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Guest Essayist: KrisAnne Hall

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“The greatest power on earth.” –James Madison

The three branches of our federal government possess a co-equal authority to apply checks and balances to protect the specific delegation of powers in order maintain separation of powers.  However, to propose that the only check upon the abuse of power by the federal government is within the federal government is  absurd.  The drafters of our Constitution, and more relevantly those who ratified the Constitution wrote extensively about their concerns of a possibility of an expanding and consuming federal government over time.  They knew from their own history that a government cannot be trusted to check itself and a government whose only check and balance is itself is kingdom regardless of the name.  This is the power of the Constitutional Republic; that there exists a powerful check upon federal power outside the federal government.

In 1789, then Representative James Madison gave an address to the House of Representatives where he explained that the people need not fear a possible overreaching, ever expanding power originating in the federal government as long as we hold fast to the limits of the Constitution.  His chief point in this declaration was that there exists a great check of federal power, one that exists outside the federal government that will be the greatest guardian of the people’s liberties.  Madison says:

“…the state legislatures will jealously and closely watch the operations of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people’s liberty.”

Because the States were created as independent Sovereign governments; because the States created the Constitution; because the States are the delegators of the federal power, Madison is explaining that the State legislators will not only be compelled to watch the operation of the federal government very closely but they will also possess the authority to make sure that the federal government does not abuse its power or steal power from the States.  Madison says, this relationship of higher power and lower power will create a duty within the State legislators to protect the rights of the people by ensuring that their creation never operates outside its limited and defined delegation of powers.

Madison repeats this principle of the external check of federal power in his Virginia Resolution of 1789 and Virginia Assembly Report of 1800:

“…in the case of deliberate, palpable, and dangerous exercise of other powers not granted…the States…have the right, and are in duty bound, to interpose…” Virginia Resolution of 1789

“…that the ultimate right of the parties to the Constitution [The States], to judge whether the compact [The Constitution] has been dangerously violated, must extend to violations by one delegated authority as well as by another–by the judiciary as well as by the executive, or the legislature.” Virginia Assembly Report of 1800

What ought to add to the State’s obligation to keep its creation, the federal government, under control, exists in the fact that the Declaration of Independence identifies the sole purpose of the creation of the States is to “secure the Rights” of the people.  A federal government unlimited in its power, or limited only by its own will or whim is a totalitarian government, putting the rights of the people at risk.  When the States are not keeping their creation within its limited and defined bounds, they are failing to secure the rights of the people.  Thomas Jefferson articulates this danger in 1812:

“when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another…If the States look with apathy on this silent descent of their government into the gulf which is to swallow all, we have only to weep over the human character formed uncontrollable but by a rod of iron…”

KrisAnne Hall began her career as a biochemist, Russian linguist for the US Army, and received her Juris Doctor from the University of Florida College of Law.  KrisAnne was a prosecutor for the State of Florida and practiced First Amendment Law for a prominent national non-profit Law firm. KrisAnne is now the founder of LibertyFirstUniversity.com and travels the country teaching the foundational principles of Liberty and our Constitutional Republic. KrisAnne is the author of 6 books on the Constitution and Bill of Rights; she also has a nationally syndicated radio show.  KrisAnne has been featured on C-SPAN TV and C-SPAN Book TV. KrisAnne can be found at www.KrisAnneHall.com

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Guest Essayist: KrisAnne Hall

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History and experience tell us that creating a government is not as much of a  challenge as maintaining a limited and defined one.  The drafters of our Constitution took that mission to heart when they created our Constitutional Republic; they not only created a limited and defined government but gave the people the best means by which to check and balance that federal power.

James Madison, Father of the Constitution and fourth president of these united States addressed the Congress in 1792 and explained,

“I sir have always conceived—I believe those who proposed the Constitution conceived—it is still more fully known and more material to observe, that those who ratified the Constitution conceived—that this not an indefinite government…but a limited government tied down to the specific powers.”

When Americans speak of “checks and balances” they generally think of the internal checks of the Congress upon the Judiciary, or perhaps the Judiciary upon the Executive.  However, the form of government created by those who ratified the Constitution contains a much more powerful external check, one that James Madison called “the greatest power on earth.”  Understanding that most powerful check and balance requires an understanding of three foundational facts: 1. The creation of the States, 2. The creation of the Constitution, and 3.  The creation of the central government.

1. The creation of the States

The founding States of our Union were not the product of a few elite rich men sitting in a pub divining ways to consolidate power unto themselves.  Our States were created when the Continental Congress debated, voted, and ratified into law the Lee Resolution on July 2, 1776.  The Lee Resolution contained a three step process to declaring, establishing, and maintaining our independence from Great Britain.  The first paragraph to the Lee Resolution would become, in part, the last paragraph of the Declaration of Independence.  The first step to becoming independent is simply to declare that independence:

“Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.”

By RIGHT our governments are no longer colonies, but by declaration of that Right are recognized to be “free and independent States.” Simply put, we are not property of the king, but we know that all men are created equal and endowed by their Creator with certain unalienable Rights.  Since we are not owned by the king, we need not ask his permission to be free, we must simply declare it.  Through the Declaration of Independence we not only make this fact known to the world, but we give clear definition to what we mean when we created, “free and independent States.”

“…and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”

Our States are defined as “free and independent,” each to be synonymous political entities with the likes of Great Britain, France, or Germany, each State  bearing the same political authority as the “State of Great Britain.” In fact we created free and individual sovereign countries who, in their sovereignty, possess “full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”  Although our States are politically the same as any other country in the world, our States have to recognize that their power is “derived from the consent of the government,” not from the King, and the sole purpose of that power is to “secure the Rights of the people,” not the power of those in government.  (See Declaration of Independence)

2. Creation of the Constitution

The Constitution is a legal document whose intent was to create and form a legally binding contract between the States.  The Constitution is a specific kind of contract called a “compact” which can be defined as a contract between sovereign governments.  As the content of the Constitution was debated and ratified, the drafters and those who ratified the Constitution made it clear their intent was to form a compact to create this new Union of States.  Richard Henry, in proposing Religious Liberty as a part of the Bill of Rights, made this statement:

“…but when we are making a constitution, it is to be hoped, for ages and millions yet unborn, why not establish the free exercise of religion, as a part of the national compact.” Federal Farmer IV

It is important to note, that although the Constitution’s preamble begins “We The People,” in legal terms the Constitutional Compact is not an agreement between the people, but between the States.  This legal fact can be proven by one simple detail; the Constitution was not ratified by popular vote of the people, but by the vote of the Representatives of the States.  Legally speaking the States are the “parties” to this compact and are therefore the creators of the federal government through the Constitution.

3. Creation of the Federal Government

The federal government is the product created by the ratification of the Constitution by the parties, the States.  When the States created the federal government, they created a specifically limited and defined federal authority.  James Madison explains to the Constitutional delegates in Federalist #45:

“The powers delegated by the proposed Constitution to the federal government are few and defined.”

Madison describes those powers as being primarily related to foreign affairs “as war, peace, negotiation, and foreign commerce.”  He continues by describing the undelegated power as being reserved to the States and “numerous and indefinite;” extending 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 this explanation, Madison is reassuring the States that in the creation of the federal government, the powers delegated to the federal government will be much fewer and more specifically limited than the powers that will remain owned by the States.  Through this we learn a very important distinction in play during the creation of the federal government: federal power is delegated and State power is reserved.  Since federal power is delegated, to fully understand the nature of the federal government created through the Constitution, we must identify WHO is delegating power to the federal government.  Looking at the sources give us the answers we need:

  1. “…that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” Declaration of Independence

 

  1. “The Power not delegated to the United States…are Reserved to the States respectively…” Tenth Amendment to the US Constitution

 

  1. “The powers delegated by the proposed Constitution to the federal government…will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce…” Federalist #45

We know from James Madison and from the Tenth Amendment that the power the federal government possesses is delegated.  We know from the Declaration of Independence that the powers that are delegated to the federal government were FIRST possessed by the States.  We know from the Constitution that the States ratified the Constitution and are the creators of the federal government, therefore we must know that the States are the delegators of the powers to the federal government.  Finally, knowing these truths, we must now admit a very fundamental and essential truth about the creation of the federal government:

When power is delegated, by definition, it is a temporary trust of authority and responsibility given by a higher power to a lower power.  Since we have established through our foundational documents that the States have delegated a portion of their power to the federal government we must admit that the States are the higher power and the federal government is the lower power.  This is the essential truth in understanding the external check on federal power created by the formation of our Constitutional Republic.

KrisAnne Hall began her career as a biochemist, Russian linguist for the US Army, and received her Juris Doctor from the University of Florida College of Law.  KrisAnne was a prosecutor for the State of Florida and practiced First Amendment Law for a prominent national non-profit Law firm. KrisAnne is now the founder of LibertyFirstUniversity.com and travels the country teaching the foundational principles of Liberty and our Constitutional Republic. KrisAnne is the author of 6 books on the Constitution and Bill of Rights; she also has a nationally syndicated radio show.  KrisAnne has been featured on C-SPAN TV and C-SPAN Book TV. KrisAnne can be found at www.KrisAnneHall.com

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Guest Essayist: The Honorable John Merrill

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         The Alabama Secretary of State’s Office

Alabama has a long history that dates back to the 1800s. As the 22nd state to join the Union on December 14, 1819, Alabama had established a Secretary of State’s Office the year before officially becoming a state. Henry Hitchcock served as Secretary of State for the Alabama Territory from 1818 to 1819 and then became the state’s first Attorney General from 1819 to 1823. The Secretary of State served a two-year term from the time Alabama became a state in 1819 until the Constitution of 1901 set the term at four years. Up until 1868, the Secretary of State was elected by the legislature, but since that time has been selected by popular vote. Over the course of nearly 200 years, Alabama has had 53 Secretaries of State, with John H. Merrill serving as the 53rd. Since taking office in 2015 and gaining re-election in 2018, Secretary Merrill and his staff have worked tirelessly to ensure that the office is doing all that it can to assist the people of Alabama.

State law gives the Alabama Secretary of State more than 1,000 different duties, and virtually all of them involve processing and filing documents that are public records. Many of the documents must have the Great Seal of Alabama affixed in order to make them official. The Secretary of State is the sole custodian of the Great Seal of Alabama, and use of the Great Seal is controlled by state law. Only a few staff members within the Secretary of State’s Office have permission to affix the seal to documents. Custody of the Great Seal was officially transferred from the Governor to the Secretary of State in 1852. Approximately 500,000 Executive, Legislative, Elections, and Business documents are stored in the Secretary of State’s Office, but the office also offers a number of other services through its various divisions. In order to keep up with the public demand for access to these records, the office uses extensive computer and information technology. The Alabama Secretary of State’s Office was one of the first in the nation to successfully store and retrieve the records on an optical disk, but today, many of the corporate and Uniform Commercial Code (UCC) records are available to businesses via the Internet.

Many of the executive records have both the signatures of the Secretary of State and the Governor because the Secretary of State serves as the Governor’s personal notary public. When the Secretary of State is witnessing the Governor’s signature, the Great Seal of Alabama is used as the “notary” seal. The executive records are composed of writs of arrest, contracts, deeds, and leases, as well as listings of abandoned vehicles found in the state, information on municipal incorporations, and the names of all the notaries publicly registered in Alabama.

In 2015, to help the state’s fiscal issues, Secretary Merrill asked the Legislature to remove the Secretary of State’s Office primary General Fund Appropriation for Administrative Services from the state budget. The office currently operates with revenues generated by the services provided by the office. The Secretary of State is the custodian of the original legislative bills that become law and is responsible for assigning an act number to each. The office ensures that the acts and minutes from the Legislative Sessions are distributed through bound volumes called the Acts of Alabama, the House Journal, and the Senate Journal. The Secretary of State also distributes the state law books called the Code of Alabama, 1975 to government agencies.

The Secretary of State is Alabama’s “Chief Election Official,” and the office is given many different election duties under state law. Election records include vote totals, certified ballots, and records showing how much money candidates and political committees raised and spent during an election. Copies of certificates of election, commissions, and oaths of office are also on file for many elected officials. The Secretary of State’s Office has developed a new system that allows Alabamians to register to vote electronically by visiting sos.alabama.gov/alabama-votes or by downloading the Vote for Alabama app from the Apple App Store or Google Play Store. With the implementation of the electronic ballot project, Alabama became one of the first states to employ an entirely secure, electronic voting system for the state’s military and civilian voters who are outside the territorial limits of the United States. Furthermore, due to the promotion of voter registration and free photo voter ID through various initiatives, such as the mobile units that travel across Alabama’s 67 counties, the unveiling of the new mobile app, and using the likeness of well-known Alabamians on promotional posters and commercials, the state’s voter registration numbers are at a historic 3.4 million, as of June 2019.

Business records are divided into three categories: Lands & Trademarks, Business Entities, and Uniform Commercial Code (UCC). The Lands and Trademarks section has the original state land records dating back to the days when Alabama first achieved statehood. All of the trademarks registered in the state are also found here. Business Entity staff members reserve names of businesses, index domestic filings, and file foreign filings for businesses that register to do business in Alabama. The state has about 500,000 business entity filings, and staff members usually get about 150-650 requests each day for information in those files. Since the summer of 2016, all business corporations filings have been filed on the same day they are received by the Business Services Division and no later than the next business day for nearly three consecutive years. Secretary Merrill’s instruction to deposit funds in one day caused all new domestic entities filing for the first time to be issued within one day of their Business Entity Number, which is available on the website. This process is a tremendous help to a new business, where banks, lenders, and others can verify the existence of a new domestic entity. Upon being informed that the state law provision on the payment of an “expedite” fee related to certain business filings was being processed in three business days, the expedition of the filings to be accomplished in less than 24 hours was immediately ordered, as the state law requires. Secretary Merrill also instructs the Uniform Commercial Code (UCC) sub-division of the Business Services Division to accomplish its recordation and filing activities in the time period required by state law, which is to be fulfilled in two days. After a period of adjustment, the UCC sub-division is consistently accomplishing its public duties the same day but no later than the next business day, as well.

The Authentications Division is responsible for providing authentication services for Alabama public documents that will be used in foreign countries. These documents include birth certificates, marriage certificates, statements of marital status, articles of incorporation, corporate bylaws, certificates of merger, powers of attorney, diplomas, school transcripts, deeds, and ABI background checks. Depending on the country of usage, an Apostille or Certification is affixed to the document(s). The Secretary of State’s website now offers an online listing of all the countries that are and are not part of the Hague Convention, along with each country’s required type of authentication. The division is also responsible for authenticating paperwork for international adoptions, and the Secretary of State’s Office hosts an International Adoption Day Celebration program each year to honor and congratulate the families who’ve adopted children on the international level.

The Alabama Athlete Agents Commission was established by the Alabama Legislature in 1988 through the Alabama Athlete Agents Regulatory Act. In 1994, the administrative functions for the commission were transferred to the Secretary of State’s Office. Any individual who operates as an athlete agent in Alabama is required by the Revised Uniform Athlete Agents Act to be licensed by the commission.

For more information on these and other services provided by the Alabama Secretary of State’s Office, visit www.sos.alabama.gov or call 334-242-7200.

John Harold Merrill is the son of Mary Merrill and the late Judge Horace Merrill of Heflin, Ala., in Cleburne County. He was born on November 12, 1963, in Wedowee, Ala., in Randolph County. He grew up in Heflin and is an Eagle Scout from Heflin Troop 206. He is a graduate of Cleburne County High School and The University of Alabama, where he served as President of the Student Government Association in 1986-1987.

While attending The University, John served as a Congressional Intern for Congressman Bill Nichols in 1983 and Sen. Howell Heflin in 1984. After college, John worked as a governmental affairs intern at the Chamber of Commerce of West Alabama in 1987-88; National Advertising Account Executive and Manager for Randall (now Randall-Reilly) Publishing Company from 1988-90; Assistant Director for the Tuscaloosa County Industrial Development Authority from 1990-93 where he assisted in the recruitment of Mercedes-Benz; Director of Business Development for the Chamber of Commerce of West Alabama in 1993-94; Director of Community Relations and Community Education for the Tuscaloosa County Board of Education from 1994-2010; and served as Business Development Officer for 1st Federal Bank in Tuscaloosa from 2011-2015.

On Nov. 2, 2010, John was elected to represent the people of District 62 in the State House of Representatives with 87 percent of the vote, which was the highest percentage garnered by a candidate in any contested House race that year. He served as the Secretary/Treasurer of the House Republican Caucus and was a member of the powerful Rules Committee, Economic Development and Tourism, and Constitution, Campaigns, and Elections Committees.

In 2011, he was presented the “Axe Award” by the Alabama Association of Volunteer Fire Departments and became the only freshman ever to be recognized as their Legislator of the Year. John was a member of the inaugural class of NCSL Early Learning Fellows in 2011, one of 30 Legislators selected nationwide and the only one from Alabama. In 2012, he was named the Alabama House Legislator of the Year by the Children’s Trust Fund, he was recognized by the Alabama Republican Party as a Rising Republican Star, and he was presented with the Tuscaloosa All-Star Award for Excellence in Caring for Veterans. In 2013, he was selected as the Soil and Water Conservation District Area III Outstanding Elected Official, Outstanding Legislator by the Alabama Association of Rescue Squads, and he was named as the Child Advocate of the Year at the Early Intervention and Preschool Conference. In 2014, John was awarded the Silver Beaver by the Black Warrior Council of the Boy Scouts of America for outstanding volunteer service in Scouting. John was identified by the Sunlight Foundation as the Most Effective Republican Member of the Alabama House of Representatives from 2011-14, and he was named Legislator of the Year by the Tuscaloosa County Young Republicans in 2014. In 2015, he was selected as one of 48 leaders from around the nation to attend and graduate from the Council of State Government’s prestigious Henry Toll Fellowship Leadership Program.

On Nov. 4, 2014, John was elected as Alabama’s Secretary of State with 65 percent of the vote, winning in 53 of Alabama’s 67 counties. He was inaugurated as Alabama’s 53rd Secretary of State on Jan. 19, 2015.

John is very active in his community and has served in many leadership capacities. He is a Deacon at Calvary Baptist Church, where he has served as a Sunday School teacher and a member of the Sanctuary Choir. He was on Emmaus Walk No. 68 and has assisted with several Emmaus Walks and Chrysalis Flights. He is a member of the National Association of Secretaries of State and the Republican Association of Secretaries of State. He is the Co-Chair of the NASS Voter Participation Committee and serves as the NASS Representative to the Steering Committee of the National Voter Registration Day. He is also a member of the United States Election Assistance Commission Standards Board. He is or has been a member of numerous community organizations, including the Alabama Sports Hall of Fame Selection Committee, Children First Board of Directors, Friends of the Alabama Archives Board of Directors, Alabama YMCA Youth in Government Board of Directors, State Republican Executive Committee, National Rifle Association, Leadership Tuscaloosa, Chamber of Commerce of West Alabama, United Way of West Alabama, YMCA, Boys and Girls Club, Big Brothers / Big Sisters, Boy Scouts of America, March of Dimes, Hillcrest High School Athletic Boosters Club, West Alabama Literacy Council and the Alabama Constables Association.

He has also served as Southeastern Regional Vice President for the National School Public Relations Association and has served as President or Chairman of many other groups, including the Alabama Children’s Trust Fund, Alabama School Communicators Association, Alabama Community Education Association, American Red Cross, Leadership Tuscaloosa Alumni Association, United Cerebral Palsy of West Alabama, Youth for Christ, Druid Civitan Club and the Tuscaloosa City School’s Vocational Advisory Council. He is a past Chairman of the Tuscaloosa County Republican Executive Committee.

John has traveled internationally and represented our state and nation in Canada, China, Germany, Russia and Taiwan.

John has been married to the former Cindy Benford of Phil Campbell for 33 years. She is a career educator and the former principal at Westwood Elementary School in Coker. The couple has two children, Brooks, 28, who lives in New York and works with the Chick-fil-A corporation, and Allie Grace, 25, who is an International Flight Attendant with American Airlines.

Special thanks to the staff members of the Alabama Secretary of State’s office for their assistance in the research and drafting of this essay.

 

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Guest Essayist: Sean Beienburg

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Not all states can say that their first public act was defying the president of the United States. Arizona, the last state admitted to the Union from the contiguous United States, can.

Like many westerners then and now, Arizonans were anxious about and skeptical of concentrations of power, especially power wielded from afar, and, in writing their constitution, they sought to see it widely dispersed. (In this, Arizona’s Founders were not unlike the American Founders, increasingly distressed at their local government affairs being directed from the metropole, in violation of what they understood their English liberties to guarantee.)[1] This meant not only that the state government would be carefully limited and easily checked by the people, but also that its constitution would ensure private actors could not wield undue influence in the state. In short, the Arizona Constitution was against both Big Government and Big Business—and it used controversial populist innovations to achieve these goals.

Worries about western populism run amok—even by the progressive Senator Albert Beveridge, an Indiana Republican who chaired the committee on territories– meant Congress planned to admit Arizona and New Mexico jointly in 1906, but only if both territories agreed. New Mexico approved of the joint admission in a referendum, but Arizona rejected it overwhelmingly. Congress agreed to separate the two but, unusually, to require the territories to have their proposed constitutions approved by both Congress and the president before admission could take place, thus ensuring a check on the radicals of the West.

In October 1910, residents from across the Arizona territory convened in Phoenix to draft a new constitution, and the charter they drafted mixed both old values and new ideas.

The early parts of the Declaration of Rights include standard statements of political philosophy once common in state constitutions, alongside explicit gratitude to and acknowledgement of divine providence. The brief preamble observes that “we, the people of the state of Arizona, grateful to almighty God for our liberties, do ordain this constitution.” (The state’s motto, Ditat Deus, meaning God Enriches, echoes this preamble).

As sections 1 and 2 of the Declaration of Rights explain, writing a constitution allows the “frequent recurrence to fundamental principles [that] is essential to the security of individual rights and the perpetuity of free government” (section 1). It also allows for the clear recognition that “governments derive their just powers from the consent of the governed” who establish them to “protect and maintain individual rights” (section 2). The substance of the individual rights that followed, largely taken from other state constitutions (and substantively if not stylistically familiar to a reader of the federal Bill of Rights and Article I, Section 10), similarly followed well-worn paths.

But while the types of rights included in the Arizona Constitution’s equivalent to the Bill of Rights are fairly standard, its latter parts, both its protections of labor and especially its structural provisions, are far more unconventional.

The Arizona constitution bristles with a skepticism of big business and a related strong commitment to the dignity of labor, incorporating and expanding on provisions being added to contemporary constitutions and legislative codes of other states like Oregon and Wisconsin.

This is perhaps most obvious in two full articles aiming to check the power of business. The first is the Corporation Commission, effectively a fourth branch of government whose obligations and powers are spelled out with great attention in Article XV. Its basic purpose: carefully regulating corporations that operated as utilities (such as railroads), which lent themselves to monopolies rather than normal market competition.

The second is Article 18, explicitly titled Labor, which offers a variety of worker protections that now seem commonplace. Often repealing old doctrines from common law, Article 18 provides, among other guarantees, for employer liability for on-the-job injury, worker’s compensation provisions, and the elimination of the fellow-servant rule (in which an employee, not the employer, was liable for worksite injuries inflicted on another worker due to the actions of the coworker).

But beyond these policy provisions–often updates to common law, which even many constitutionally conservative politicians found little to object to—worries about the concentration of economic power led to institutional innovations which did unsettle defenders of American constitutionalism.[2] Because of concerns that special interests could all too easily capture the complicated separation of powers of the Madisonian system and thwart the will of the people, Progressive Era reformers sought to change not just what the policies were but the very structure of government itself.

Arizona’s founders imbibed these intellectual waters, and thus the charter they created is a populist constitution, with a focus on direct, rather than mediated, democracy.

The initiative and referendum processes are the most obvious example of this. The equivalent of the U.S. Constitution’s vesting clause (Article I, Section 1), in which legislative power is vested in Congress, in Arizona explicitly reserves the right of the people to override the legislature by referendums or initiatives.[3] (In fact, for emphasis, this reservation appears in the first paragraph.) The initiative and referendum was championed by convention president and first governor George Hunt, who himself had picked up the idea from Bucky O’Neill, an Arizona soldier killed with Theodore Roosevelt’s Rough Riders in the charge up San Juan Hill.[4]

A second, related instance of constitutional populism is the simple initiative process by which amendments are made to Arizona’s Constitution. While perhaps an extreme example, Arizona’s theory of direct constitutional democracy both illustrates and attempts to take advantage of constitutional federalism.

The U.S. Constitution, which establishes a strong but substantively limited federal government and imposes a floor of basic rights on all the states, is difficult to amend, requiring a supermajoritarian, cross-regional consensus to do so—thus ensuring a narrow majority cannot impose its wishes on the diverse citizens of the country more broadly.

But Arizona’s state constitution, by way of contrast, is extremely easy to amend, requiring the gathering of signatures and a bare majority vote at the following general election. This ensures that the state government can thus directly respond to the local preferences of the people in exercising the police powers for the common good, but that even when being a “laboratory of democracy” the state government remains checked within the core constraints of the U.S. Constitution.[5]

A third instance of the constitution’s populism is its distrust of appointed politicians. Unlike in many states which model the U.S. government, in which one elects the chief executive, who in turn brings an attorney general and other executive branch officials, almost every Arizona position is separately elected and after a direct popular primary.

Part of the concern for concentrated power was the fear of judges run amok (and especially when in cahoots with business, as they were often charged with being). The early 1910s were a tough time for judicial independence, with Progressive Era critiques of the separation of powers leading to consideration of a wide range of attacks on judicial review.  Some wanted supermajority judicial votes to declare legislation unconstitutional, others, to allow Congress to overturn judicial decisions.[6] Future Supreme Court justices Felix Frankfurter and Louis Brandeis proposed eliminating part of the 14th Amendment altogether in order to stop judges from, in their mind, imposing their policy views on states that wanted to build more protective regulatory regimes.[7]

This debate was largely what the 1912 election would be about: Theodore Roosevelt wanted to be able to recall individual judicial decisions, part of why William Howard Taft and Roosevelt’s two closest political allies Elihu Root—who had been Roosevelt’s chosen successor—and Henry Cabot Lodge all turned on TR in the election, fearing their old friend had turned against American constitutionalism itself.[8]

This was the climate in which Arizona sought statehood, and it reflected the wild western populism common to the time, which led even progressives like Albert Beveridge to fear statehood and arrange, uncommonly, for a presidential signature to be required for admission.

Thus, the single clearest and best-known example of the militant populism that so worried these Republicans is in the constitution’s judicial recall provision. Article VIII of the Constitution established protocols for recalling officials– “all elective officials”, making Arizona the second state to have a recall provision (after the progressive laboratory of Oregon).

But because Arizona judges, like in many states, gained their seats by election, the expansive language meant that judges themselves would be vulnerable to recall—a far more radical curb on judicial power than any of the other alternatives raised in the Progressive Era.

For President Taft, a former and future judge, this was unacceptable. Arizona’s provision would intimidate judges from making unpopular decisions when the law required them to do so. As such, he vetoed the state’s admission- thus ensuring Arizona, not New Mexico, would be the 48th state.

By a 9 to 1 vote Arizona voters added a clause to their recall section insisting that it was for all elective officials “except members of the judiciary.” A mollified Taft thus approved statehood.[9] What one historian has termed “the longest sustained admission fight in American territorial history” seemed over.[10] But there was one more skirmish to be fought.

As Oklahoma’s recent move of its state capitol from Guthrie to Oklahoma City in violation of its own statehood enabling act had proved the year before,[11] there was nothing that could be done to ensure compliance—what could Taft do if Arizona resisted? Cite breach of contract and take statehood away from a now sovereign entity? Invade it as in revolt? As a result, then-Governor Hunt and the legislature moved to restore judicial recall immediately, with the first senate bill a constitutional amendment restoring it, openly provoking the president and members of Congress.

And that proposed amendment was approved at the next election by an almost 50 to 1 ratio—with Taft, the sitting president running in fourth in Arizona, losing not only to Wilson and Roosevelt but even the Socialist candidate Eugene Debs.[12] You could say then that the Arizona  Constitution, like Arizona more broadly, was born angry- we warned them.

Sean Beienburg is an assistant professor in the School of Civic and Economic Thought and Leadership at Arizona State University and the project director of the Living Repository of the Arizona Constitution. He is also the author of the recent book Prohibition, the Constitution, and States’ Rights (2019), published by the University of Chicago Press.

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[1] For the clearest encapsulation of the importance of federalism to revolutionary thought, see the underappreciated predecessor to the Declaration of Independence, the Declaration and Resolves of the First Continental Congress, October 14, 1774 https://avalon.law.yale.edu/18th_century/resolves.asp; on the subsequent development of the American understanding of federalism more broadly see Sean Beienburg, Prohibition, the Constitution, and States’ Rights (Chicago: University of Chicago Press, 2019), 18-24.

[2] See for example, Elihu Root, “How to Preserve the Local Government of the States: A Brief Study of National Tendencies.” Speech to the Pennsylvania Society in New York, Wednesday, December 12, 1906, printed as How to Preserve the Local Government of the States (New York: Brentano’s, 1907); Beienburg, Prohibition, the Constitution, and States’ Rights, 44-50.

[3] Article IV, Section 1, Part 1.

[4] John D. Leshy, The Arizona State Constitution, 2nd ed. (New York: Oxford University Press, 2013), 15.

[5] New State Ice Co. v. Liebmann 285 U.S. 311 (1932) (J. Brandeis, dissenting)

[6] Kenneth P. Miller, Direct Democracy and the Courts (Cambridge: Cambridge University Press, 2009); William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937 (Princeton, NJ: Princeton University Press, 1994); Stephen Engel, American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power (Cambridge: Cambridge University Press, 2011).

[7] Sean Beienburg, “Progressivism and States’ Rights: Constitutional Dialogue between the States and Federal Courts on Minimum Wages and Liberty of Contract.” American Political Thought 8 (2019): 34.

[8] William Schambra, The Saviors of the Constitution,” National Affairs 10 (Winter 2012), reprinted as “The Election of 1912 and the Origins of Constitutional Conservatism,” Toward an American Conservatism: Constitutional Conservatism During the Progressive Era, eds. Joseph Postell and Jonathan O’Neill (New York: Palgrave MacMillan 2013), 95-121

[9] Leshy, The Arizona State Constitution, 22.

[10] Howard Roberts Lamar, The Far Southwest, 1846-1912: A Territorial History (Albuquerque: University of New Mexico Press, (2000) [1970]), 423.

[11] See Coyle v. Smith, 221 U.S. 559 (1911), upholding the move on grounds enabling act conditions ceased to be binding once a state was admitted to the union, insofar as it became an equally free state.

[12] Leshy, The Arizona State Constitution, 22-23.

Guest Essayist: The Honorable Ken Paxton

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State Attorneys General (AG) serve as the chief lawyers for their respective states and work to defend state sovereignty in a variety of contexts. They represent the interests of their states in court proceedings by defending state laws against legal challenges and, in many cases, enforcing state laws in both civil and criminal actions.  They frequently are called upon to provide legal advice to state officials and to issue legal opinions on a range of issues.  They also may oversee critical government programs, such as (in Texas) the state’s child support function.

While similar to their federal counterpart—the U.S. Attorney General—these state officers perform functions that vary greatly from the federal context, specifically in three ways.

First, the state AG is a constitutional officer of a sovereign state.  The U.S. Constitution recognizes the independent states’ sovereignty[1] and limits the duties of the federal government while reserving the remaining power to the states.[2]  Unlike the U.S. Attorney General, the majority of state AGs are constitutional officers: the AG is an elected executive officer in 43 states with the remaining states appointing the position.[3]

Texas is unique because it was a sovereign nation before joining the union. Between 1836 and 1846, the President of the Republic of Texas appointed the AG to serve a two-year term. Texas joined the Union as the 28th state on December 29, 1845, and, in 1850, the Texas Constitution was amended to provide for the election of the AG.

Second, state AGs swear an oath to uphold and defend the laws of their state in addition to the U.S. Constitution.[4]  By contrast, the U.S. Attorney General is only charged with upholding and defending the U.S. Constitution and federal law.

This role for the state AG is appropriate:  it supports the sovereignty of the state and the Constitution’s federalism, which allows states to hold the federal government accountable. The states, and their officers, were meant to be safeguards of a limited federal Constitution, not the front-line champions of federal power.[5]

Texas requires[6] the AG to protect the state’s interest broadly to defend state sovereignty. [7]   Between 2010 and 2016, the Texas AG sued the federal government 48 times for exceeding its authority on issues ranging from environmental protection regulations to the Affordable Care Act.[8] These lawsuits are important to preserve state rights and stand as a bulwark against unconstitutional federal encroachment.

Third, the role of state AGs is broader than the U.S. Attorney General because, as state officers, they must advise, protect, and enforce the laws of each of their states. Many state AGs serve as the chief legal advisor and chief law enforcement officer for their state.

In Texas, the AG issues legal opinions on a variety of topics and defends state agencies in litigation. The AG litigates antitrust and environmental violations and prosecutes human traffickers and child abusers. Texas has been a national leader in bringing cases defending states’ rights and continues to be at the forefront of litigation to restrain the federal government to its enumerated powers.

In summary, state AGs have complex roles, which differ from the U.S. Attorney General, primarily because of the powers rightly reserved to the states under the Constitution and the innumerable ways in which each state wields that responsibility.

Ken Paxton is the 51st Attorney General of Texas. Attorney General Paxton is focused on protecting Texans and upholding Texas laws and the Constitution.

Fighting federal overreach, he filed 22 lawsuits against the Obama administration during a two-year stretch, of which six cases were heard in the U.S. Supreme Court. Most recently, a U.S. District Court agreed with his 20-state coalition lawsuit holding Obamacare unconstitutional. Attorney General Paxton obtained an injunction or other winning ruling in over 75 percent of the cases he has brought against the federal government.  

Attorney General Paxton has won major cases for Texas on immigration, school rights, voter ID, sanctuary cities, redistricting, EPA rules and religious freedom. He created a human trafficking unit in his office that helped shut down Backpage.com, the largest online sex-trafficking marketplace in the United States. Attorney General Paxton’s office has also obtained a record number of successful election fraud convictions.

Prior to becoming attorney general in January 2015, he served as a state Senator and a member of the Texas House of Representatives. A graduate of Baylor University, Attorney General Paxton earned his law degree from the University of Virginia School of Law.

 A special thanks to Lesley French, Assistant Attorney General, for assistance in researching and drafting the essay.

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[1] See, e.g., U.S. CONST. amend. X; id. art. I, § 10, cl. 1 (“No State shall enter into any Treaty, Alliance, or

Confederation . . . .”); id. art. I, § 10, cl. 2 (“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports . . . .”). A few constitutional provisions are exceptional. See id. art. I, § 4, cl. 1 (instructing states to prescribe the time, place, and manner of elections for senators and representatives); id. art. II, § 1, cl. 2 (empowering states to decide the manner in which presidential electors are selected).

[2] THE FEDERALIST NO. 46 (James Madison).

[3] Maine’s state legislature appoints the attorney general and the Tennessee Supreme Court appoints the attorney general.

[4] See, e.g., CAL. CONST. art. 20, § 3 (“I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that

I will well and faithfully discharge the duties upon which I am about to enter.”); N.Y. CONST. art. 13, § 1 (“I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the office of [attorney general], according to the best of my ability . . . .”); TEX. CONST. art. 16, § 1(a) (“I, _____, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of [attorney general] of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.”); VA. CONST. art. II, § 7 (“I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the

duties incumbent upon me as [attorney general], according to the best of my ability (so help me God).”); 15 ILL. COMP. STAT. ANN. § 205/1 (West 1990) (“I do solemnly swear (or affirm, as the case may be), that I will support the constitution of the United States and the constitution of the state of Illinois, and that I will faithfully discharge the duties of the office of attorney general, according to the best of my ability.”).

[5] THE FEDERALIST NO. 46 (James Madison) (discussing the ability of states to check claims of federal authority).

[6] Tex. Const.  art. IV, § 22.

[7] Id. Those powers generally include but are not limited to:  (1) bringing suit on behalf of the state or a governmental entity, i.e. Tex. Civ. Prac. & Rem. Code § 125.070; (2) seeking injunctive relief; (3) recovering civil penalties; (4) defending agencies and state officials, i.e., Tex. Civ. Prac. & Rem. Code §§ 101.103, 104.004; Tex. Gov’t Code § 74.141 (defend state district court judges) (5) investigatory i.e. Tex. Bus. & Comm. Code § 15.10 (may issue civil investigatory in monopoly/anti-trust cases); (5) enforcement of specific statutes i.e. Tex. Bus. & Comm. Code § 17.47 (may enforce the DTPA), Tex. Hum. Res. Code §§ 36.051-.053 (investigate, seek penalty and injunction for Medicaid Fraud); (6) seeking mandamus against certain entities, i.e. Tex. Election Code § 123.065; Tex. Gov’t Code § 552.321 (compel gov’t entity to make information public), (7) assist in prosecutions, i.e. Tex. Gov’t Code § 41.102; and (8) approving bonds issued by state and local governmental entities as well as various utility districts and institutions of higher education, Tex. Gov’t Code Ch. 1202; Staples v. State, 245 S.W. 639 (Tex.  1922); Agey v. Am. Liberty Pipeline Co., 172 S.W.2d 972 (1943) (“The Attorney General is the chief law officer of the State, and it is incumbent upon him to institute in the proper courts proceedings to enforce or protect any right of the public that is violated.  He has the right to investigate the facts and exercise his judgment and discretion regarding the filing of a suit.” (internal citations omitted)).

[8] Neena Satija et. al., Texas v. the Feds – A Look at the Lawsuits, Texas Tribune (Jan.17, 2017); available at: https://www.texastribune.org/2017/01/17/texas-federal-government-lawsuits/

Guest Essayist: J. Eric Wise

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How to Keep the Founders’ Intentions for “We the People” Who Are in Charge of Their Own Governing

The first mention of the United States in an official document is found in the Declaration of Independence. The thirteen colonies that declared their separation from England became thirteen “free and independent States.”

As a practical matter, these states were always united, if perhaps at first only in war against the British. By 1781, these united states had entered into The Articles of Confederation and Perpetual Union, commonly called the Articles. The Articles provided that “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

But the powers delegated to the United States in Congress were not insubstantial. Under the Articles, the power over foreign policy and the laying of imposts and duties, and responsibility for determining war and peace, resided in the national government. In time, however, the inability of the Articles to deal with a failing economy and serious governance problems led to the calling of a constitutional convention.

The Articles provided that the compact could be altered only with the consent of Congress and confirmation “by the legislatures of every State.” The impracticality of this rule led to the proposal that the new Constitution be effective, with respect to ratifying states only, when ratified by conventions held in just nine states. The new Constitution thus was never approved by the unanimous mechanism described in the Articles. The rights of states embodied in the provisions requiring unanimity were cast aside for the sake of “The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional [under the Articles] limits.”  Federalist 38. 

The Constitution established a new relationship among the states. No longer were the states held together in perpetual union as a compact of states; rather  “We the People of the United States” formed a government directly as a compact of a people. A confederation of independent states no more, the government was to be –

“partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.” Federalist 39.

Almost immediately following ratification of the Constitution, the nation adopted the Bill of Rights as the first ten amendments to the Constitution. The Tenth Amendment to the Constitution provided that “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.” As the powers delegated to the United States were listed in the enumerated powers of Article I and related largely to defense, interstate and international commerce, coinage, bankruptcy, and citizenship, the Constitution left to the states “police powers” to look after the health, safety and welfare of the people of the United States.

The dispersal of these very important police powers concerned more than the simple preservation of the status quo in place under the Articles of Confederation. The dispersal of police power had an important philosophic idea underlying it, based on the nature of human society. A republic, in which the people govern themselves, requires a body of people closely familiar with one another. With a smaller territory, the people of a republic could be familiar with and attached to the customs and habits of the people, and make sound policies and laws suited to their way of life and economic livelihood.

Indeed, opponents of the Constitution had cited “Montesquieu on the necessity of a contracted territory for a republican government.” Federalist 9. A large territory, Montesquieu had supposed, encouraged a monarchy, as monarchies were more adept at communications over distance and operate on principles that do not require thorough familiarity with the governed (rather they require familiarity with a small body of subordinate princes). The Constitution resolved these issues by creating a federal republic, where local rule prevailed in areas touching the daily lives of the people.

The power of the states to make different policies and laws suited to their way of life and industry had what one might call a beneficial “knock-on effect.” James Madison observed that the federal republic would take in a large number of different interests – obviously in no small part on account of the independent police powers of the states to shape the citizenry – which would have the effect at the national level of cancelling out narrow selfish interests. He wrote:

“Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.” Federalist 10.

In the Twenty-First Century, this model has been partly abandoned. Not only has American society adopted practices that homogenize its culture, such as national television, newspapers, radio, and a largely uniform way of higher education – universities are homogenized by, among other things, the competition for national rankings prepared by U.S. News and World Report – the national government has also increasingly absorbed the traditional police powers of the states through expansive readings of the commerce clause and of “substantive due process,” circumscribing the role states play in shaping the character of their citizens through policies and laws.

In today’s climate of identity politics, the resulting uniformity of laws and culture may not seem like a threat. But consider perhaps that a uniform national culture – identity politics itself – may already exist and that a common national motive for a majority to invade the rights of a minority may be gathering. In this light, it may be time for states to once again jealously protect their rights and to exercise with renewed vitality their police powers to shape diverse interests for the common benefit of the United States.

Eric Wise is an attorney practicing in New York.

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Guest Essayist: Greg Davidson

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To many, the position of state governor is a faint echo of the president of the United States.  The president is in charge of a vast empire stretching coast to coast with global implications while governors are seen as mere presiders, not much more than little men running little fiefdoms perpetuating their own schemes for self-interest and self-aggrandizement.

That view, of course, is blatantly false.  The position of governor in the American political system far predates the concept of a president, though the role of the American president is a noble position of service as first exemplified by George Washington who refused a crown to rule as king and instead chose to serve through a presidency.  Governors in the American colonies maintained relations with overseas powers and oversaw the vast expansion of the American state.  Governors oversaw massive political changes as state constitutional systems were created.  Governors laid the foundation for the modern American state through their vision, leadership, and administration.

And if the concept of governor is broadened even more to recognize them as presiding officers in the vast array of North American political systems, it is clear that these governors have led the way for centuries.  Governors governed by Spanish, French or Mexican rule, that are now part of the United States, reach back to the 1500s before most of the northeastern states were even organized as colonies.  This is not to mention the presiding governors of ancient tribes and native peoples in Hawaii, Alaska and all across the American continent.  By this, it is also clear that the American constitutional role of the president established by the Constitution of 1789 is a latecomer to the game of governing in America.

Given this rich and varied background, present day state governors are as diverse as their history.  At present, 27 of the 50 governors are Republican and 23 are Democrat or Independent.  Thirty states have elected women as governors at sometime in their history, while 20 states including progressive states such as California, Colorado, New York and Wisconsin have never elected a woman governor.

Current governors self-identify their religious beliefs along a wide line of religious beliefs: 18 as Roman Catholic, five as Presbyterian, four as Christian, four as Baptist, three as Jewish, two as Congregationalist, two as Evangelical, and one each as Buddhist, Quaker, Lutheran, Protestant, Methodist, Mormon, and Episcopalian.  Five do not list any religious affiliation – a diverse lot.

States have been governed by a wide number of ethnic-minorities as well.  Ten have been governed by Mexican Americans, five by African Americans, two by Indian Americans, two by Salvadoran Americans, and one each by a Spanish American, Native Hawaiian, Chinese American, Filipino American, Japanese American, Okinawan American, and Native American governor from the Cherokee Nation.

The average age of American governors at their first inauguration is just over 56 years.  Governor Kay Ivey of Alabama was the oldest serving governor upon her inauguration at 72 and Ron DeSantis of Florida is currently the youngest at 40.  By contrast, the American president has been exclusively male and white with one exception, generally educated in the northeast, and mostly Protestant.

Current American governors have come to their offices by many different pathways immediately prior to their election.  Eleven were lieutenant governors, eight were United States Congressmen, five were state attorney generals, four were state senators, three were state representatives, three were state treasurers, two were secretaries of state, one was a county official, one was a United States ambassador, and four were assorted executive branch officials at the state level.  Seven governors currently serving had no experience as elected officials prior to their election.

And finally, the position of state governor has served as a launch pad for future presidents of the United States more than the U.S. House or Senate or any federal executive branch office.  Governors are elected president more than any other elected official.  Nine governors were elected directly from the statehouse to the White House while only six U.S. Senators and only three U.S. Representatives were elected directly from their respective offices.  Seventeen presidents were previously elected as either state governors or territorial governors.  And a total of five presidents were elected with no prior elective office experience.

Bottom line is the position of governor in the American political system is unique and powerful.  Whereas the national political system creates uniformity and demands conformity, American states present diversity both in the breadth of the institutional constructs creating the office of governor, and through a variety of political, ethnic and socioeconomic backgrounds.  Further, innovation, economic development, educational expansion, and the extension of constitutional guarantees are at the helm of the role in which governors serve by leading the way in our American states.

Greg Davidson is the Executive Clerk to the Governor and director of the Constituent Communication Division of the Office of the Governor in Texas.  Over the past 30 years, Greg has worked for Texas Governors Clements, Bush, Perry, and Abbott.  Greg holds a Master of Arts in government and a BBA in Marketing from the University of Texas at Austin.  He also holds a Master of Divinity degree from the Austin Presbyterian Theological Seminary and currently serves as the Stated Clerk for the South Texas Presbytery of the Presbyterian Church in America.  Greg was elected to serve as a presidential elector in the United States Electoral College and has been involved in presidential, gubernatorial, congressional, state, and local campaigns since 1976.  He resides in Austin, Texas with his wife Donna Garcia Davidson who is an attorney in private practice concentrating in the area of campaign finance and election law.  They have one daughter, a senior at Regents School of Austin, who intends to go to college, study engineering or law, and play competitive golf.

 

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Guest Essayist: Joerg Knipprath

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Unfortunately, the Court cast aside Justice Frankfurter’s warning that judges should stay out of the apportionment controversy and let the democratic process resolve it. Where wise men feared to tread, the justices foolishly rushed in. In 1962, in Baker v. Carr, they decided that such issues were “justiciable,” after all. Two years later, in Reynolds v. Sims, they decided that the Equal Protection Clause of the Fourteenth Amendment supplied the solution. All legislative districts, whether congressional, state legislative, or local, had to be equal in population to be constitutional. The history of the Equal Protection Clause contains no evidence that the Congress or the states intended it to address this issue. Indeed, section two of that amendment addresses a very specific instance of representation, that is, a state’s representation would be reduced in the House of Representatives by the proportion that it denied its adult male citizens the right to vote on racial grounds. The framers of the amendment were fully aware of political representation, yet did not consider the Equal Protection Clause itself applicable broadly to representation or voting.

The Court cast the operative principle as “one man, one vote.” The cases most assuredly had nothing to do with voting. No one was denied the right to vote. Nor did one person’s vote count differently than that of the next person in line. What it came down to was that, in districts with unequal population, a voter in a larger district allegedly had his vote diluted in the legislature in comparison to a voter in a smaller district, because the former’s representative represented more residents than the latter’s. The Court ignored the fact that there was no logical connection between who could or could not vote and any particular system of representation.

Other difficulties with the Court’s opinion were that districts with equal numbers of residents might not have equal numbers of voters. In Evenwell v. Abbott, in 2016, the Court ruled that population equality is based on residents, not voters. Of course, this will result in vote dilution for those who vote in districts with many voters, compared to those who vote in equally-sized districts with many non-voters, such as children, prisoners, and aliens, legal or otherwise. Moreover, populations change over ten years, so any attempt to adhere slavishly to population equality is doomed to immediate failure, as districts change in relative size.

Why, then, did the Court decide to tilt at these constitutional windmills? The catalyst was the decades-long failure of certain mainly Southern states to reapportion their districts in violation of their own state constitutional requirements. This produced often significant discrepancies in population between small rural districts and populous urban areas, a trend exacerbated by the 20th century’s technology-driven trend of urbanization. The Court viewed recourse to state constitutional conventions as too cumbersome. Since the delegates to those conventions were likely to be elected from those same malapportioned districts, they, like the legislatures, could not be counted on to challenge the existing system in a meaningful manner. Congressional interference with state districting would tread on thin constitutional ice and, in any case, was unlikely in light of the malapportionment of many congressional districts. The justices are drawn from a legal elite that shares many common outlooks, whatever their personal partisan affiliation. The common wisdom for that elite was that the existing systems exaggerated the influence of rural, socially and politically “unenlightened” residents and politicians, and constrained the economically, racially, and socially more progressive urban dwellers.

If the goal was to make the political environment reflect imagined urban progressivism, the results definitely have been inconclusive. The reapportionment cases, with their emphasis on population equality over everything, did break down the power of rural and small-town politicians and interests. In the South, they helped loosen the stranglehold of the Democratic Party that had produced the “Solid South” for over a century. But political power did not flow from the rural Democrats to the urban Democrats, as much as it did from the rural Democrats to the suburban Republicans. In non-Southern states, power similarly tended to flow to the expanding suburban areas, many of which did not share the mindset of the urban elites.

More significant in the long run was the “law of unintended consequences” manifesting itself in the guise of naked partisan gerrymandering. Going back to the country’s founding, most states apportioned one of their legislative chambers primarily on the basis of population and the other at least partially on other factors, such as county lines or city boundaries, much as the old Massachusetts and Virginia constitutions had done. In many states, the latter had been used for the lower, more numerous house. In contrast, more recent apportionment plans, as in California and Colorado, had followed the “federal model” and used population for the more numerous house and allowed political boundaries as a significant factor to apportion the less numerous upper legislative chamber.

The Court rejected both systems in Reynolds. As to the “federal model,” the Court argued that the Constitution was a compromise among sovereign states. However, the states’ political sovereignty did not extend to deciding how to govern themselves internally, because the cities and counties were not themselves sovereign actors, but mere creatures of the states. The same day as Reynolds, in Lucas v. 44th General Assembly of Colorado, the Court used the same reasoning to strike down a recent reapportionment of the Colorado legislature, approved by a significant majority of voters in every legislative district in the state. The Court’s objection was that the political majority might elect the governor and the lower house of the legislature, but it would take two-thirds of the population in the most populous districts to elect a majority of the upper house. The purpose of the Colorado system was to give some political influence to the residents in the large areas of Colorado not within fifty miles of the intersection of I-25 and I-70 and the city of Denver. The Court was unmoved by the fact that Colorado’s urban and suburban residents had themselves voted in favor of the plan, and that the voters had also overwhelmingly rejected a proposal that incorporated the system the Court eventually imposed. If even one voter’s vote was diluted, the Court declared, a constitutional violation had occurred.

In subsequent decisions, the Court softened its numerical rigidity somewhat. For congressional districts, under Karcher v. Dagett (1983), any deviation from absolute equality will be strictly scrutinized. For internal state legislative districts and for local districts, however, the Court decided in Mahan v. Howell (1973) that only “substantial equality” is needed, with deviations up to 20% from an ideal equality among districts being acceptable.

But the damage is done. By severely curtailing the ability of states to consider factors other than population, the Court removed the constraints on the one apportionment tool that coexists comfortably with population equality, the partisan gerrymander. When apportionment had to occur within set political boundaries, partisan considerations were blunted. Moreover, population movements and new political issues could change the partisan composition of a district. Politicians more likely had to moderate ideological predispositions and be less rigidly partisan. When preexisting district lines are meaningless and the quest for numbers is paramount, districts are drawn to maximize partisan advantage. Using computerized data and statistical formulae, apportionment experts create “safe” districts to maximize the majority party’s advantage well beyond their share of voter registration. For example, in California, Democrats have 46 congressional seats, Republicans 7, even though the Republican share of the vote in California is around 38%. Based on percentages, the Republicans should have had an additional 13 seats. These safe seats are won during primaries by the most militant candidate appealing to the party’s ideologically committed base. The winners then become difficult to dislodge and serve many terms, thereby putting them in legislative leadership roles.

Many observers have mourned the increased partisanship and hardening of ideological lines facilitated at least in part by the representational paradigm of population equality. At the state level, longevity of service is restrained by term limits, but ideological militancy is not. A final chapter may be emerging in the Supreme Court’s apportionment experiment. So far, the Court has avoided tackling partisan gerrymandering. However, the justices served notice in Davis v. Bandemer (1986) that such gerrymandering might violate the Constitution if it resulted in systematic and continuous exclusion of a party from political power. The justices could not agree on a specific standard to determine whether such an injury had occurred. In Vieth v. Jubelirer (2004), a plurality led by Justice Antonin Scalia found such cases to be non-justiciable, precisely because courts had not been able to discover any constitutional standard to apply in political gerrymandering claims. The intensely and inherently political nature of partisan gerrymandering and the many nuanced shapes it can take makes this a very difficult area for judicial resolution. However, the recent case of Gill v. Whitford (2018) and current litigation involving partisan gerrymandering in Maryland suggest that the judiciary’s struggle to extricate itself from the political issues that infuse partisan gerrymandering continues.

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

 

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Guest Essayist: Joerg Knipprath

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While Congress determines each state’s allotted number of representatives, each state draws the lines of its congressional districts. A few states early in their history experimented with at-large elections to maximize their clout in the House, but Congress quickly passed a law to require election from single-member districts. That method reflects the American constitutional tradition, dating back to colonial times, of tying representation to local political units and geographical areas, with their inhabitants voting for one of their own. Although the Constitution does not explicitly require members of the House to live in the districts that they represent (hence, the possibility of at-large elections), residence in the district is a practical requirement. Jon Ossoff, a Democratic candidate in a 2017 special election for a congressional seat in Georgia was found not to reside in that district, a fact that was publicized by his opponent. Despite massive out-of-state financial support, Ossoff lost, and his failure to live in the district likely contributed to that loss.

States also apportion their state legislative districts and determine how local electoral districts are apportioned. State constitutions typically provide for regular reapportionment and fix who–legislatures, courts, commissions–is to conduct that reapportionment. Local districts, such as county commissioners, school boards, and junior college districts, are included in this process, even if they perform multiple functions, as long as one of those functions is legislative and the body is elected by districts. The Supreme Court has recognized one exclusion, in Ball v. James (1981), for certain special governmental units that have only limited legislative powers, such as water districts. For those, voting and representation can be apportioned on the basis of amount of water rights or use, rather than population. The distinction between special and general governmental bodies is none-too-obvious, however.

In the 1960s, another wave of discontent arose over voting and representation, originating in litigation over racial discrimination. For many years, the Supreme Court had stayed out of the “political thicket” of legislative apportionment about which Justice Felix Frankfurter had warned in Colegrove v. Green in 1946. Constitutional challenges to legislative apportionment were dismissed as “non-justiciable political questions,” meaning that they were not suitable for resolution by courts. The reason was republicanism. Voting and representation are quintessential expressions of self-government, determined by consent of the governed through direct participation in voting or through representative bodies, such as constitutional conventions or, at least, legislatures. Unelected judicial mandarins accountable only to their conscience imposing a system of government on society fundamentally undercuts the modern consensual basis of the legitimacy of the state.

Another problem was that republicanism requires neither some particular system of voting, nor a specific scheme of representation. Hence, voting qualifications are addressed in clear constitutional provisions. Changes to voting qualifications, at least at the level of the U.S. Constitution, with a few controversial exceptions, have been produced through explicit and formal amendments. Matters of representation, as well, are addressed in express manner in a few rather terse and specific provisions.

Beyond those basics, the Constitution has left such political issues to the political process, particularly in the several states. Especially regarding representation, the Constitution only requires that the states have republican forms of government. We know what a republican form is not, namely, hereditary monarchy or aristocracy. But we do not know what it is. Must representation be based on districts? If so, must these be single-member? Must representatives be elected by a majority, or does a plurality suffice? At the state or local level, must it be based on residents, adult residents, citizens, registered voters, actual voters, or something else? Must all districts be drawn on the basis of population equality only? May the system give recognition or accommodation to political subdivisions; cohesive racial, ethnic, religious, or cultural communities; organized societal subgroups, such as labor unions, business or professional associations, or military veterans; or wealthier areas that contribute more to the maintenance of the political community through their taxes? Most of these variants have occurred in the constitutions of the several states or in current or former republican systems around the world.

Finally, judges approach such issues through the language, methodology, and epistemology of the law. Lawsuits produce winners and losers and deal in absolutes. In constitutional litigation, there is the additional complication that the Constitution confers a certain moral legitimacy on the winner and concurrent illegitimacy on the loser. These institutional factors tend to produce arguments and results that lurch towards conceptual absolutes and hard attitudes rather than compromise, flexibility, and nuance. Representation often requires the balancing of numerous competing interests, particularly in a political system that, through its Madisonian roots, is consciously designed to pit temporary and changing coalitions of diverse self-interested factions against each other.

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

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Guest Essayist: Joerg Knipprath

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In a republic, two distinct principles are essential to political influence, voting and representation. Although there is no logical connection between any particular systems of voting and representation, there is a practical overlap. It is not astonishing, therefore, that allocation of voting and representation not only have been addressed in all republican constitutions, ancient and modern, but that conflicts over these issues have flared up in American history. “No taxation without representation” was one potent Revolutionary War-era slogan–and continues to be an (avoidable) obsession with some residents of the District of Columbia and with its municipal government. That slogan arose out of fundamental differences between English and American conceptions of voting and representation that had evolved from the experiences of living under distinctive physical and social conditions.

Voting qualifications and representation have been major controversies in several periods of American history. The Philadelphia Convention in 1787 was deadlocked several weeks over the representational structure of the proposed Congress and nearly broke up over the matter before Roger Sherman and Oliver Ellsworth of Connecticut presented the current compromise system. The constitutional upheaval of the second quarter of the 19th century during the “Age of Jackson” that produced numerous state conventions was triggered by popular restiveness over the outdated systems of voting and representation. One particularly tragic-comic event during that time was the Dorr War, a “civil war” in Rhode Island in 1841/2. It was precipitated by an attempt to reform the voting qualifications and legislative apportionment in place since the old colony’s royal charter had been made, with a few qualifications, the new state’s constitution at independence. Once more, in the 1960s, voting and representation became major constitutional issues. This time the matter was addressed through litigation in courts, rather less democratic than constitutional conventions and less dramatic than civil wars, no matter how small.

As early as 1639, the Fundamental Orders of Connecticut fixed voting for the General Court in all free adult male inhabitants of the towns, if they had taken the Oath of Fidelity. The Orders also fixed representation in that body based roughly on the population of the constituent towns. Other colonial charters followed suit. After independence, the state constitutions addressed these issues, sometimes in considerable detail. For example, the Virginia Constitution of 1776 simply provided in a fraction of one sentence that voters must be free adult males with sufficient common interest with, and attachment to, their community, presumably based on residency and property ownership. The system of representation, on the other hand, took up two complete sections, with representation in the House of Delegates primarily on the basis of counties and cities, and in the Senate, on the basis of larger districts composed of various counties.

The Massachusetts Constitution of 1780 similarly allowed voting for its two legislative chambers by adult male inhabitants with sufficient estates who lived in their respective electoral units. The forty senators would be elected from districts that were apportioned based on the proportion of taxes that they paid. The number of districts, their lines, and the number of senators from each would be determined periodically by the legislature. The state’s House of Representatives would be apportioned on the basis of incorporated towns, with some adjustment for population size among the towns. It was the Massachusetts system of senatorial apportionment by the legislature that made a lasting contribution to the political lexicon. In 1812, the legislature redrew the Senate districts to favor the Jeffersonian Republicans. One district, in Essex County, had a particularly convoluted shape, which an editorial in the Boston Gazette compared to a salamander and dubbed a “Gerry-mander.” The governor, Elbridge Gerry, had signed the legislation despite personal misgivings about its hyper-partisanship. Partisan apportionment remains a common tactic today, and districts not infrequently have similarly odd shapes. One refreshingly honest practitioner, former California Democratic Congressman Philip Burton, in 1981 called one such creation his “contribution to modern art.” While the pronunciation has changed slightly, to a soft “g,” the “gerrymander” has endured.

The U.S. Constitution provides for apportionment of representation among the states. In the Senate, representation is based on the political equality of all states in their corporate capacity, in recognition of their residual sovereignty. In the House of Representatives, it is based on a combination of population and political identity, in that more populous states receive more representatives, but each state has at least one, regardless of population. The Constitution initially provided for one representative for each 30,000 residents, which number itself had been controversial. The convention had settled on one member for each 40,000, but George Washington thought that too high. It was the only time that Washington, the presiding officer of the convention, spoke on a substantive issue before the convention. His proposal was quickly adopted. Beyond that, some speakers at the Philadelphia convention and the state ratifying conventions spoke broadly about the desirability of population equality in drawing districts, and the need to avoid the “rotten boroughs” of England, that is, districts that no longer had many residents, yet still elected members of Parliament. State constitutions also endorsed equality in representation. As, the Virginia and Massachusetts constitutions showed, however, their concept of equality was far more nuanced than the numerical rigidity that the Supreme Court later discovered in the Constitution.

While population growth and admission of new states initially resulted simply in increasing the number of representatives, in 1929 Congress capped the size of the House at 435 voting members, to prevent their number from becoming too unwieldy to conduct business efficiently and to deal with a lack of physical space in the chamber. As a consequence, after every decennial census, unequal population increases in the various states now cause some states to gain representatives, and others to lose them. This can also produce significant population disparities among districts in different states, depending on the formula Congress uses. Under the current formula, the largest district, in Montana, has nearly twice the population of the smallest district, in neighboring Wyoming.

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

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Guest Essayist: J. Eric Wise

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According to Aristotle, “the first society to be formed is the village. And the most natural form of the village appears to be that of a colony from the family…” The town of my childhood, Detroit, was a colony founded by the French in 1701. One of my forebears by the name of Parent was among the first of 40 families to settle there in 1707. My grandmother, Blanche Parent Wise, was also the first – and last – Republican woman to sit on the Detroit city council from 1952 to 1960. Greenwich, Connecticut, where I live today, began as a colony founded in 1640 by a group of Englishmen that included daughter-in-law of John Winthrop, the founder of the Massachusetts Bay Colony and author of the famous “city on a hill” sermon.

While the Town of Greenwich, population 61,000, is old, its modern charter arrived in 1975. The charter is filled with provisions for budgets, elections, flood control, health, home rule, ordinances, parks and recreation, zoning, parking, public works, sewers, a board of estimation and taxes, a town council, selectmen (think mayors and deputy mayors), and a town clerk. 

As this litany of charter provisions shows, a town or city touches almost every aspect of the daily life of its people. Whether you are driving on a road, visiting a park, waving to a policeman directing traffic, taking in the bustle of your local commercial district, or simply parking your car, you are working with your city government and your city government is working for you.

A city government is always busy making a great many households into one community, into its own little “city on a hill” as John Winthrop would have said. A city government not only must do all these things – imagine a world without police or firemen, or in the case of Greenwich, public beaches! – it must also pay for them.

Thus the first article of the charter of the Town of Greenwich provides for the Board of Estimate and Taxation (or BET), which is responsible for the “proper administration for the financial affairs of the town.” The BET consists of 12 members elected at large, who serve without pay for a term of two years. The Town of Greenwich may not borrow without the approval of the BET.

The AAA rated Town of Greenwich has a highly successful financial record. The Town of Greenwich 2019-2020 Budget reflects operating costs of $389,620,369 (about $6,400 per capita), authorized general debt of $39,981,000 and authorized sewer debt of $7,250,000 (altogether about $800 per capita). The debt represents general obligations of the Town of Greenwich backed by its “full faith and credit.” This means the Town of Greenwich has made a commitment to use its future taxing power to pay for bonds issued to meet current expenditures.

In the Town of Greenwich, executive power is held by the First Selectman. All administrative functions – police, fire, highways, sewers and other public works, building inspection, parks, recreation, law, human resources, parking services, fleet management, information technology and purchasing for such purposes, fall under the direct supervision and control of the First Selectman. A Board of Selectmen consisting of the First Selectman and two other Selectmen appoints the various heads of department on the recommendation of the First Selectman.

But there are important duties of a First Selectman that are not found in the charter. Fred Camillo, a Republican candidate for First Selectman in the Town of Greenwich, when asked about the responsibilities of a First Selectman, said “The First Selectman is the voice and face of the town, and is the person who sees to it that the public welfare is protected, its finances secure, with its future road map charted.”

Camillo, who currently represents the 151st District of Connecticut in the Capitol in Hartford, added, “The First Selectman also has to keep an eye on Hartford, and have a solid working relationship with the governor and a good rapport with the various state departments and agencies as well as legislature.”

In addition to an executive, the Town of Greenwich has a deliberative body called the Representative Town Meeting, or RTM for short. Like a city council, the RTM exercises the ordinance making powers on behalf of the people of Greenwich. A highly democratic body, the RTM consists of over 200 members, and meets regularly to conduct town business.

In addition to the First Selectman and the Board of Estimate and Taxation, the Town of Greenwich elects two Selectmen, five members of the Board of Tax Review, a Tax Collector, seven Constables.

Not to be forgotten are the volunteers. According to Camillo, “Volunteers are extremely important. They reduce the tax burden and foster a spirit of pride, which is very helpful.  Greenwich is unique in that people take their civic duty seriously. In fact, the civic involvement is second to none. I travel all over the state, and I have never seen the level of civic involvement that I have seen in Greenwich. As long as I can remember, it has always been there.”

This apparatus of leaders, departments, appointees, employees, and volunteers works to deliver the essential services needed for living well. It requires the hard work and dedication of a great body of people, many of whom perform their jobs for no compensation, out of a sense that a town is a kind of family.

When city government does not work, when a town ceases to be a family, the results can be catastrophic. In 2013, Detroit, once one of the largest and wealthiest cities in the United States, filed for bankruptcy. More than ten times the size of the Town of Greenwich, Detroit had saddled itself with more than 400 times the debt. Years of overtaxing and underservicing had driven the population down to less than half of its peak. Detroit had gone from being a “city on a hill” to a city in a very deep hole. Just how deep? A suspension of representative government occurred in Detroit; an unelected Emergency Manager took over power to operate the city as the city marched into a Chapter 9 bankruptcy.

Eric Wise is an attorney practicing in New York.

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Guest Essayist: Clay Williams

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Mississippi followed a long, winding path to reach statehood. Following thousands of years of various Native Americans inhabiting the landscape, European powers burst upon the scene in the 1500s. Between then and the late 1700s, Spain, France and England had all claimed at least portions of the area we now know of as Mississippi. When the fledgling United States acquired the area in the late eighteenth century, it took nearly twenty years before Mississippi became this nation’s twentieth state.

Congress established the Mississippi Territory on April 7, 1798. Spain had claimed a large portion of the area but had given up much of its rights by 1795. Initially, this region consisted of a strip of land between the Mississippi and Chattahoochee Rivers but by 1812, it encompassed all of the present-day states of Mississippi and Alabama. The territorial government consisted of a governor, three judges and a secretary who served as a ruling council. Once the population level reached a certain number, the territory could apply for the second territorial stage which included an elected assembly and a delegate to Congress. Eventually, a territory could apply for statehood.

The new government faced a variety of difficult issues: conflicting land claims, tense relations with Native Americans, and the continuing interference of the Spanish. Severe political factionalism also dominated territorial politics which hampered the Mississippi Territory’s governors as they attempted to deal with these problems. It was not until near the end of the territorial period when the area’s residents became focused on the drive for statehood and the political rivalry began to subside.

The residents of the Mississippi Territory were primarily former British or Spanish citizens or natives of other parts of the United States who had migrated to the region in pursuit of land and opportunity. Following the conclusion of the Creek War in 1814, the most important event in the development of the region, a flood of immigration into the region occurred. By the time of Mississippi’s statehood in 1817, the area’s population had swelled to over 200,000

While the Territory remained overwhelmingly rural, it included several noteworthy towns such as Washington, Port Gibson, Mobile, and Huntsville. Natchez was by far the most important town in the Territory. Laid out by the Spanish in the late 1700s, the city became the cultural and economic center of the Territory as well as the seat of political power throughout the period.

Whether they lived in a city or in the countryside, most Mississippi Territory citizens’ lives revolved around agriculture. Cotton became by far the most profitable and important crop. Just as importantly, the profitability of cotton production gave rise to the widespread growth of slavery in the Mississippi Territory. Slaves had first been brought into the region during the colonial era, but it was during the territorial period that their population grew in significant numbers. The institution exerted great influence on the Territory’s economy and laid the foundation for a pattern of economic and social development that would dominate much of Mississippi’s history for the next fifty years.

Arguments over whether the Mississippi Territory would enter the union as one state or two had begun almost immediately after its organization in 1798. Aware of the economic and political dominance of their portion of the Territory, many western residents, specifically those in the along the Mississippi River near Natchez favored admission as a single state so that they might maintain their influence. Many eastern residents in the Mobile region, however, initially felt that their interests were neglected due to the great distance between themselves and the territorial capital as well as other inherent differences in economy and lifestyle. After the Creek War, however, the situation reversed. The population of the eastern section of the Territory grew rapidly as settlers migrated onto former Creek lands. Realizing the potential to exert more influence on any new state of which they were to be a part, many eastern section residents now began to favor admission of the Territory as one state. Sensing the future diminishment of their influence, those in the western section now advocated division.

In the end, Congress divided the territory in large part to allow four new seats in the Senate instead of just two. President James Madison signed the enabling act that granted admission of the western section of the Territory as the state of Mississippi on March 1, 1817; the eastern section was organized as the Alabama Territory at the same time. The line of division, which still serves as the boundary between Mississippi and Alabama today, was designed to be a compromise between the wishes of western and eastern residents of the Territory although many residents of both areas remained unhappy.

In July of 1817, forty-eight delegates from Mississippi’s fourteen counties met to draft the new state’s constitution. The constitution established Mississippi’s government and recognized Natchez as the state’s capital. This charter document kept power in the hands of the few as only white men of property could vote or hold office. Many statewide elected officials were elected by the legislature and the amendment process was difficult.  In keeping with its agricultural roots, slavery was expressly protected. President James Monroe on December 10, 1817, signed the resolution that admitted Mississippi as the nation’s twentieth state. Territorial governor David Holmes won election as the state’s first governor. Electors also chose George Poindexter as its only congressman and Walter Leake and Thomas H. Williams as its first senators.

Mississippi has since written three more constitutions over the past two hundred years. The next constitution written in 1832 mirrored the Jacksonian age by expanding those who can participate in government to all white men. After the Civil War, the 1868 constitution extended voting rights to all men, regardless of race. The state’s current constitution, written in 1890, reversed these democratic gains by requiring poll taxes and literacy tests to qualify to vote. These measures decimated the number of registered African American voters; measures that were not overturned til the modern Civil Rights Movement of the 1950s and 60s.

Clay Williams serves as Sites Administrator for the Mississippi Department of Archives and History where he oversees operations for six museum sites (Eudora Welty House and Garden, the Manship House Museum, the Old Capitol Museum, Winterville Mounds, Historic Jefferson College, and the Grand Village of the Natchez Indians.)  He has been published several times in such venues as the Journal of Mississippi History, The Mississippi Encyclopedia, and Mississippi History Now. His first book, Battle for the Southern Frontier, the Creek War and the War of 1812, co-authored with Mike Bunn, was published in July 2008 from The History Press.  He is currently under contract to co-write a volume with the Heritage of Mississippi Series on Frontier Mississippi (1800-1840).

 

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Guest Essayist: Peter Roff

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During the Second Continental Congress’ debate over whether to sever ties with Great Britain, Benjamin Franklin is alleged to have said that revolutions “come into the world half improvised, half compromised.”

It may be that he never said it yet if he had he might have just as easily been talking about just how the United States of America came to locate its permanent seat of government on a plot of land, ten miles square on the banks of the Potomac River.

Officially it all came about as the result of the Residence Act of 1790 – officially “An Act for Establishing the Temporary and Permanent Seat of the Government of the United States,” signed into law by President George Washington on July 16, 1790 at a time when the federal government, such as it was, operated out of New York City.

The act transferred the capital, temporarily, back to Philadelphia, the city where independence from Great Britain had famously been declared and in which the new Constitution had been written, in secret, by many of the nation’s greatest minds. Those men, by and large, now occupied positions of prominence, either in the new federal government or in their states and almost all had opinions about where the permanent capital should be located.

The machinations behind the scenes that resulted in the Residence Act are perhaps the first great compromise of the new Republic. The northern states did not want the capital in the South. The southern states did not want it in the North. And no state wanted it located within the confines of any other, thinking it would give that state an unfair advantage in the affairs of the new nation.

The logjam was broken by an agreement brokered by James Madison and Thomas Jefferson, who wanted the capital in the South, and New York’s Alexander Hamilton, who wanted the federal government to assume the remaining debt incurred by the states during the War for Independence. The compromise, they reached, presumably blessed by President Washington, placed the permanent capital just a few miles upriver from his Mt. Vernon estate.

In the original configuration, the land which made up the capital was ceded to the federal government by Virginia and Maryland and formed a diamond, ten miles square. In 1846 the area given by Virginia was returned. This includes the independent city of Alexandria, which existed before the district was assembled, as well as the area now called Arlington County.

What makes the District of Columbia truly unique, though, is not that it was formed from land belonging to other states. The Constitution provides for that possibility so long as the legislature or legislatures of the state or states affected consents. Maine, for example, comes from territory once a part of Massachusetts and was admitted as an independent state when a free state was needed to balance the admission of one where slavery would be legal. No, what makes Washington D.C., different from the other states and territories is that the founders intended it would always be run by the federal government.

In Federalist 43, Madison writes:

“The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy.”

“This consideration has the more weight,” he goes on to say

“as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence.”

As they saw it, the independence of the capital city from the governments of the other states was an additional safeguard of our liberties and of the new system of government created by the U.S. Constitution based on checks and balances of power not just between the three branches of the federal government but between the federal government and the states.

That system held well into the 20th century. The protests of what has become known as the civil rights era gave impetus to the viewpoint the structure of governance within the District of Columbia was antiquated and discriminatory. In 1961 the 23rd Amendment to the Constitution was ratified, giving the District three votes in the Electoral College for the election of the president and vice president. In 1973, Congress enacted the District of Columbia Home Rule Act, giving the city an independently elected mayor (to replace the city’s chief executive officer who, under different titles had been an appointee of the President of the United States) and a 13-member city council.

Home rule, however, is not complete. The actions of the mayor and the city council are still subject to congressional review and can be overturned by an act of Congress. Additionally the District lacks representation in the United States Senate (it does elect to “shadow senators” whose purpose is to lobby for statehood) its residents to elect a delegate to the U.S. House of Representatives who, at different times, has been both a voting and non-voting member of the body.

There are some who believe the District should be granted statehood. They’ve adopted and, in a nod to the chief slogan of the War for Independence managed to get onto the city’s vehicle plates the unofficial motto, “No Taxation without Representation.” There are others who believe the original constitutional construct of having the capital city run by the federal government to, for various reasons, be a good one that should be returned to as originally envisioned. It is not an issue that will be settled easily or, one must believe, soon.

Peter Roff is a Washington, D.C.–based journalist and commentator who serves on the Constituting America advisory board.

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Guest Essayist: Marc Clauson

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Home Rule or Dillon Rule? What is the meaning, purpose and impact for American citizens to choose “Home Rule” or “Dillon Rule” authority to govern their cities? How does each work for local as compared to state government?

John Dillon, a Federal judge in the nineteenth century, wrote a famous treatise, Municipal Corporations (1872), in which the legal doctrine of the power of municipal governments was expressed.  The rule that emerged from his book and court cases was that local governments were “creatures of the state” and only had power to do what was expressly authorized by the state legislature or in the state constitution or what was implied in those laws or what was necessary to carry out those powers granted.  The opposite rule, the “Cooley Doctrine,” is derived from the work of the judge Thomas Cooley, and expressed the idea of the inherent right of self-government for local entities. The idea of Home Rule for cities arose out of the Cooley Doctrine.

Neither of these legal theories is inherently better than the other, though some might think (with some support) that the Dillon Rule prevents cities from straying too far from legitimate authority.  The key is what a legislature or state constitution allows a city to do.  If under the Dillon Rule the city is granted expansive authority, then the rule does not effectively limit governmental power.  The Cooley Doctrine already tends to allow a greater range of independent authority to a city, which may amount to an inappropriate scope of power.  If the American political experiment was predicated on limited government, as was the case of the United States Constitution, then local governments should also fall under the umbrella of that political theory.  There is no inherent reason why they should be treated differently than state and national governments.

The implications of the Dillon Rule are that a check on inappropriate power of a city can exist if a legislature exercises its political will.  On the other hand, the Cooley Doctrine might allow a larger scope of power than would be beneficial to citizens, unless the particular city government form adopted (strong mayor, weak mayor, council, strong charter, etc.) can provide a check.  In the end, what one wants to see is a city/local government that possesses powers that are similar in nature to those possessed by the national government under the Constitution, adjusting of course for the differing functions.  My point has to do with the scope and nature of powers.  If a particular power is allowed (under whichever rule), it still should not be an unlimited power.  Moreover, not all powers are legitimate for any given local government or for any such government.  Under current law of local government, it is incumbent on the state legislatures to create institutional arrangements that do limit power, or that appropriate state constitutional limits be in place.

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

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Guest Essayist: Scot Faulkner

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Every year elections are held in the United States.

Federal and state elections every other year (except a few states who are truly “off-year” outside of the two-year cycle).  Local elections, county and municipal, are held somewhere every year.

There are approximately 88,000 local governments, districts, and commissions containing over 500,000 elected officials.

Many local offices are nonpartisan, meaning not party affiliated.  School Boards and small cities and towns assume local functions are not truly partisan.  Is there a Republican or Democrat way of collecting trash or plowing snow?

Local government is designed to be more intimately related to the people it serves. Ironically, few Americans understand its functions, and fewer know their local officials.

This is unfortunate, as local government is, in many ways, far more important than national and statewide offices.  Local laws and their enforcement can affect property values, quality of education, quality of water, and determine life or death when managing first responders.

This dichotomy of importance and ignorance creates numerous challenges and opportunities.

On the one hand there is less interest in running for these offices.  In smaller towns and cities, of importance and as many as 79 percent of local elections are uncontested.  There is also less interest in voting for these offices.  Stand alone local races, held in off-years, may experience voter turnouts of less than 20 percent.  Local elections held during regular cycles, usually county and school boards, may garner 30-40 percent less votes than for the high-profile state and federal offices.

On the other hand, smaller voter turnout means a dedicated group of activists can elect a candidate as change agent.  It also means a low threshold for a first-time candidate entering a local race.

21st Century campaigns have become extremely expensive.

In 2014, the average winning campaign for the U.S. Senate campaign spent $10.6 million.  In 2018, incumbent U.S. Senator Claire McCaskill (D-MO) spent $33.5 million in her losing re-election campaign.  In 2018, Senator Bill Nelson (D-FL) spent $25 million to lose his re-election, while Governor Rick Scott (R-FL) spent $68 million to defeat him.

Campaigns for the U.S. House of Representatives can also be very expensive. Congressman Alex Mooney (R-WV) spent $1.8 million for winning his 2018 re-election.

These campaign finance numbers do not include the millions spent by “independent” organizations to promote or oppose candidates through direct mail and professionally produced radio and television advertisements.

Compare this with county-level campaigns where $5,000-$20,000 may be all that is required for victory.  Winning small town and School Board campaigns may only require a just few hundred dollars.

“Down-Ballot” offices are ideal for average citizens to run for office for the most idealistic of reasons – to help their community.  Many who run for these positions do not desire political careers.  They are motivated by seeing something that needs to be done and answer the call to do it.

Another aspect of local “down-ballot” campaigns is that they usually transcend partisanship.  This is certainly the case for officially nonpartisan offices.  Even partisan local campaigns will see bipartisan cooperation when community values, honesty in government, and civic reform is at stake.  There are countless examples of activists who may be deeply divided on national issues joining forces to “drain the swamp” of county courthouse insiders.

Successful “Down-Ballot” campaigns may include a few yard signs, but rarely include major advertising.  Social media, especially Facebook pages and groups, have been the winning edge for many of these first timers.  Some create their own Facebook and YouTube videos to introduce themselves or highlight issues.

The intimacy of local campaigns also allows for neighbors to help neighbors.  “Meet and Greets” in private homes and door-to-door face-to-face interactions are the purest form of grassroots campaigning.  Money is not as important.  One local candidate, who was revered for her charity work, won by a landslide despite being outspent 21-1.

This lack of interest in running and voting has, by design or chance, levelled the field for average citizens to make a difference.  Either as a candidate or as a supporter/voter of that candidate, “down-ballot” offices provide a way for caring members of the local community to get involved and contribute to the greater good.

What could be more American than that?

Scot Faulkner advises corporations and governments on how to save billions of dollars by achieving dramatic and sustainable cost reductions while improving operational and service excellence. He was the Chief Administrative Officer of the U.S. House of Representatives. He started his Congressional career as an intern for Rep. Don Young (R-AK), then served on the legislative staffs of Rep. Arlan Stangeland (R-MN) and Rep. John Ashbrook (R-OH). Faulkner later served on the White House Staff and as an Executive Branch Appointee.

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Guest Essayist: The Honorable Tim Griffin

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The twenty-fifth state to be admitted, Arkansas formally joined the United States on June 15, 1836, and was the ninth state to secede from the Union. Its current constitution, adopted in 1874, is the fifth used in the state’s history.

Arkansas’s march to admission to the Union had its roots in two of the most powerful movements of the nineteenth century: the sectional crisis and the rise of Jacksonian Democracy. By 1835, a special census revealed that Arkansas, at over 52,000 residents, met the minimum population requirements (40,000) for admission to the Union.[1] Two variables complicated this process. First, the Missouri Compromise of 1820 established the principle of slave and free states coming into the Union in pairs, in order to maintain the balance of power in the Senate. Secondly, statehood advocates sought to have Arkansas admitted in advance of the 1836 presidential election, to give the Democrats a further advantage at the polls. It was understood that Michigan, a free state, would be paired with Arkansas, but the Whig Party in Congress sought to delay what would be the admission of two Democratic-leaning states.[2] Also at home, many Arkansans were wary of the idea of statehood, particularly those who had questions about the still largely frontier territory’s financial strength.[3] But the proclamation by the editor of the Arkansas Advocate that statehood would give Arkansans “The rights and rank to which we are entitled,”[4] carried the day, and President Andrew Jackson signed the statehood bill into law on June 15, 1836.

In the state’s early years, it struggled economically because of its still predominately violent frontier image and the failure of an ill-conceived state-supported banking system that left debilitating debts and even more suspicion of government involvement in the economy.[5] Economically, Arkansas was divided into small subsistence farms in its mountainous north and upper west and large slave-based plantation agriculture to its south and east. Politically, the state’s governmental life was controlled by the Democratic Party, which was in turn controlled by a group known as “The Family,” that coalesced around the Conway, Rector, and Sevier families.[6] The Civil War and Reconstruction would lead to huge upheavals, as wartime destruction and the rise of a Republican Party led by northerners who had remained south after the war led to struggles over matters such as civil rights, education, and economic modernization. After this period, Arkansas would still remain predominately agrarian for almost another century, heavily dependent on a one-crop cotton based economy. Other products such as timber, rice, oil, and natural gas were developed in the postwar years, but were most often sent out of state for processing until World War II. After the war, Arkansas embarked on a broad program of economic diversification led by Governor Winthrop Rockefeller, and expanded by home-grown entrepreneurs such as Don Tyson, Sam Walton, and Charles Morgan.

As mentioned earlier, Arkansas is governed under its 1874 constitution, which is its fifth since statehood, and commonly known as the “Thou Shalt Not” document.[7] It reflected the general suspicion of government power that had been prevalent in the state since entering the Union. Most of these revisions placed into the document were highly restrictive and negative in nature.[8] County governments became more powerful as administrative units of the state, with jurisdiction over roads and bridges, local judiciary, and taxation and spending. The state’s powers to tax and borrow were severely limited, the terms of elected officials were reduced from four years to two years (changed to four years by a constitutional amendment in 1984), the number of elected county officials was increased from two to ten, and the legislative sessions were biennial, limited to sixty days. The governor’s power was greatly reduced, and executive power was divided between seven constitutional officers. Vetoes could be overridden by a simple majority, and much authority transferred from state to county government. Some modernization of government has taken place in the postwar era, most notably two reorganization bills in 1971 and 2019 that consolidated and reorganized state agencies, boards, and commissions into a smaller number of executive departments. Term limits for constitutional officers and the legislature were first enacted in 1992,[9] and some of the document’s more stringent provisions, such as a strict limit on interest rates and state borrowing authority, have been modified in recent years.

After the end of Republican Reconstruction, Arkansas joined its sister Southern states into the Democratic “Solid South,” and the state was one of the last to transition into a two-party system in the modern era. Arkansas’s reputation took a beating after the Central High desegregation crisis of 1957, and gradually, reformers from both parties exerted more influence on state policy by the 1970s and 1980s. The Republican Party in Arkansas began to slowly gain ground beginning in the 1980s, but was slowed by the election of former Arkansas Governor Bill Clinton’s election to the Presidency in 1992. By 2014, the Republican Party had arrived in full force with the first full Republican sweep in the state since 1872, and the dawning of a new era.

Tim Griffin grew up in Magnolia, a fifth-generation Arkansan and the youngest son of a minister and teacher. He was elected lieutenant governor of Arkansas on November 4, 2014, and was re-elected for his second four-year term on November 6, 2018. He is focused on growing jobs through aggressively pursuing economic development, more parental choice in education and boldly reforming state government. For 2019, he is serving as Chairman of the Republican Lieutenant Governors Association (RLGA).

From 2011-2015, Griffin served as the 24th representative of Arkansas’s Second Congressional District. For the 113th Congress, he was a member of the House Committee on Ways and Means while also serving as a Deputy Whip for the Majority.  In the 112th Congress, he served as a member of the House Armed Services Committee, the House Committee on Foreign Affairs, the House Committee on Ethics and the House Committee on the Judiciary. He also served as an Assistant Whip for the Majority.  In Congress, he advocated for bold tax reform and entitlement reform to grow jobs and reduce the national debt.

During the Bush Administration, in 2006-2007, Griffin served as U.S. Attorney for the Eastern District of Arkansas and previously as Special Assistant to the President and Deputy Director of Political Affairs for President George W. Bush at the White House.

Griffin has served as an officer in the U.S. Army Reserve, Judge Advocate General’s (JAG) Corps, for over 22 years and currently holds the rank of lieutenant colonel. He was recently selected for promotion to colonel. In 2005, Griffin was mobilized to active duty as an Army prosecutor at Fort Campbell, Kentucky, and served with the 101st Airborne Division (Air Assault) in Mosul, Iraq, for which he was awarded the Combat Action Badge.  He is currently serving as a senior legislative advisor to the Under Secretary of Defense for Personnel and Readiness at the Pentagon. In July 2018, Lieutenant Governor Griffin, in his capacity as a Lieutenant Colonel in the United States Army Reserve, received his master’s degree in strategic studies as a Distinguished Graduate from the United States Army War College, Carlisle Barracks, Pennsylvania.

Tim is active in the community.  He currently serves on the board of Our House shelter for the working homeless and previously served on the boards of the Florence Crittenton Home for unwed mothers and Big Brothers Big Sisters of Central Arkansas.

He graduated from Magnolia High School, Hendrix College in Conway and Tulane Law School in New Orleans and attended graduate school at Oxford University in England. His wife Elizabeth is from Camden, and they currently live in Little Rock with their three children, Mary Katherine, John, and Charlotte Anne. They are members of Immanuel Baptist Church of Little Rock.

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[1] Jeannie M. Whayne, Thomas A. DeBlack, George Sabo III, and Morris S. Arnold, Arkansas: A Narrative History (Fayetteville: University of Arkansas Press, 2013), 128.

[2] Ibid., 129.

[3] Ken Bridges, “Marking the 180th anniversary of Arkansas statehood.” Log Cabin Democrat, June 11, 2016. https://www.thecabin.net/opinion/2016-06-11/marking-180th-anniversary-arkansas-statehood (Accessed May 30, 2019)

[4] Whayne, et.al., Arkansas: A Narrative History, 131.

[5] S. Charles Bolton, Arkansas 1800-1860: Remote and Restless (Fayetteville: University of Arkansas Press, 1998), 50.

[6] Thomas A. DeBlack, “The Family [Political Dynasty].” Encyclopedia of Arkansas History and Culture, December 21, 2015.  https://encyclopediaofarkansas.net/entries/the-family-political-dynasty-2666/ (accessed May 30, 2019)

[7] Michael B. Dougan, Arkansas Odyssey: The Saga of Arkansas from Prehistoric Times to Present (Little Rock: Rose Publishing Company, 1994), 268.

[8] Kay C. Goss, “Arkansas Constitutions.” Encyclopedia of Arkansas History and Culture, December 3, 2018. https://encyclopediaofarkansas.net/entries/arkansas-constitutions-2246/ (Accessed May 30, 2019)

[9] Whayne, et.al., Arkansas: A Narrative History, 463.

 

Guest Essayist: Scot Faulkner

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America’s 3,034 counties are the backbone of local government and form the core of our civic culture.

Counties are embedded in each state’s constitution and given explicit governing roles and responsibilities.  They arose during the Middle Ages as the domain of a Count or vassal serving a monarch, thus the name.  When the Normans conquered England, they supplanted the local Saxon shires, governed by chieftains, with “contés”, governed by agents of the Crown.

The core activities of counties have seen little change since Counts were given responsibility for maintaining law and order, providing for local roads, and arbitrating disputes, in their domain.

In his timeless masterpiece on American culture, “Democracy in America”, Alexis Clerel, Viscount de Tocqueville, described the functions of county government and the selection of local officials:

The town-meeting chooses at the same time a number of other municipal magistrates, who are entrusted with important administrative functions. The assessors rate the township; the collectors receive the rate. A constable is appointed to keep the peace, to watch the streets, and to forward the execution of the laws; the town-clerk records all the town votes, orders, grants, births, deaths, and marriages; the treasurer keeps the funds; the overseer of the poor performs the difficult task of superintending the action of the poor-laws; committee-men are appointed to attend to the schools and to public instruction; and the road-surveyors, who take care of the greater and lesser thoroughfares of the township, complete the list of the principal functionaries.

The United States currently has approximately 88,000 local governments, districts, and commissions comprised of approximately 500,000 elected officials. This is 20 times as many officials as exist at the federal and state levels. Local governments collectively spend over $1 trillion annually.

As de Tocqueville outlined in 1835, today counties provide the basic services we require in our daily lives:

  • Police, fire and public safety services
  • Sewage, water treatment and waste management
  • Schools, libraries, and other education resources
  • Roads, paths, and bridges
  • Public transportation
  • Planning, permitting, and enforcement
  • Public health services, including mental health, and services to the disabled
  • Tax collection and disbursement

The provision of these services requires close cooperation with “sister” jurisdictions, which may include the state, municipalities and townships embedded within the county, and adjoining counties. Sometimes regional commissions or authorities are established to formalize this cooperation.

County Commissioners or Supervisors act as a “board of directors” to establish policies and oversee these services.  In most cases, there are only 3-9 who are elected and serve in this capacity in each county. These are part-time positions, except in the most populated counties.

The Clerk is a fulltime elected official who is the keeper of all public records, from land ownership to births, deaths, and weddings.  Clerks, and their full staff, administer the settling of estates, or probate, when deaths occur.  Most importantly, Clerks manage voter registration, candidate filings and reports, creating the ballot, holding the election, and counting and reporting the vote.

The elected Sheriff is more than the chief law enforcement official.  Just like in “Robin Hood,” the Sheriff is the tax collector and manages the county’s finances.

Depending on the population of a county there are an array of other public officials, either elected or appointed, who handle assessing property for tax purposes, certifying the health and viability of water systems and food service establishments, coordinating emergency response, and providing parks and recreation.

Public Schools are governed by a separate and independently elected School Board of 5-9 members.  While schools are funded from the property taxes assessed by the Assessor, and collected by the Sheriff, the Board administers and disburses the funds themselves.

The detailed work of counties is conducted through boards and commissions. These include land-use regulation, building permits, water & sewer, and economic development.  Those serving on these boards are part-time volunteers appointed to the County Commission.

This is where local communities face a fundamental challenge.

Most Americans have poor awareness and understanding of local government.  The decisions and activities of the diverse array of elected and appointed officials go unreported, or under-reported.  Holding local power accountable is one of the greatest problems in America today.

In his groundbreaking book, “Bowling Alone”, Robert Putnam described the deterioration of communities in 21st Century America.  This is borne out in how few people volunteer to serve on local boards and commissions, how few attend local public meetings, and how few take actions when incompetence or corruption arise.

Corruption and incompetence are more prevalent than ever.  Land use can make or break fortunes, and help or harm a community, especially in the wrong hands. Unfortunately, conflicts of interest are predictable around land speculation.  Misuse of public funds, especially directing contracts to friends and family, or for unrecorded payments, is always possible.

Prior to the digital age, local newspapers were the bulwark against corruption and malfeasance.  Unfortunately, many of these newspapers are vanishing.  Recently, Dean Baquet, Executive Editor of the New York Times, told the World Congress of News Media that “The greatest crisis in American journalism is the death of local news”.  He predicted most local newspapers “are going to die in the next five years”.

Digital media remains more interested in national issues and popular culture.  The journalistic capacity for demanding accountability, or reporting basic information on county government, is vanishing.

It is up to local citizens to demand accountability. This means demanding transparency, including all public documents being public and all public meetings being public.

Few local officials, especially on appointed boards, support full accountability.  Countless citizen lawsuits have forced public notices to be on websites instead of posted on index cards on courthouse bulletin boards.  This is vital in “bedroom communities” where most citizens commute out of the county for work.

The citizen-led victories for accountability and transparency are based upon state laws that mandate public access. These laws are called “sunshine” laws and “freedom of information acts.”  It is important for those concerned about their communities to learn these laws and fully understand the importance of “adequate public notice” for public hearings and decisions.

America will remain a beacon of hope for freedom loving people everywhere only if Americans take their citizen responsibility seriously and actively participate in their local government.

Scot Faulkner advises corporations and governments on how to save billions of dollars by achieving dramatic and sustainable cost reductions while improving operational and service excellence. He was the Chief Administrative Officer of the U.S. House of Representatives. He started his Congressional career as an intern for Rep. Don Young (R-AK), then served on the legislative staffs of Rep. Arlan Stangeland (R-MN) and Rep. John Ashbrook (R-OH). Faulkner later served on the White House Staff and as an Executive Branch Appointee.

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Guest Essayist: The Honorable Randall T. Shepard

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Formation of today’s traditional Midwest took root in the years after the Treaty of Paris ended the conflict known to Europeans as the Seven Years War, known in America as the French and Indiana War.  Signed in 1763, this resolution gave the British nominal control over the land from the Atlantic to the Mississippi.

During the Revolution, Indiana was the site of a battle for Fort Sackville, at Vincennes.  As American forces took the fort, they turned toward an effort driving out the British out of places like Illinois and Michigan, the ultimate objective being  Detroit.

After the war, the much-maligned Continental Congress took important steps in organizing these areas.  They adopted the Northwest Ordinance of 1787, with the idea that Ohio, Indiana, Illinois, Wisconsin, and Michigan would eventually be divided into five states of the union.

From the time Ohio became a state in 1803, Indiana’s leaders were hard at work on achieving this end.  They soon scheduled a special census and petitioned for statehood in 1811, an initiative derailed largely by the turmoil of the War of 1812.  With a new census in hand, they petitioned again in 1815 and succeeded in becoming the nineteenth state in 1816.

By the time of statehood the capital had moved from Vincennes to Corydon, both of them towns in the southernmost part of the state.  It was a moment when almost all of the state’s population lived within a short horse ride of the Ohio River, then the nation’s superhighway for both commerce and migration.

The state’s leaders recognized that much future growth would occur in the north.  They settled on relocating the capital to the center of the state, and in 1820 they hired Alexander Ralston to lay out a plan for a new urban place.  Ralston had  assisted Pierre L’Enfant in designing a city plan for Washington in 1791. Hiring him was a sign of pioneer ambition to build a spirited society.

Over the succeeding decades, Indiana focused on three societal objectives.  The first was a shared aspiration to build the bones necessary for a vigorous economy.  The second was a determination to create an educational system that would provide young people with the foundation needed to thrive in that economy.  The third was the struggle against slavery.

Much of published history on infrastructure focuses on the extraordinary Internal Improvements Act of 1836, which led to extensive construction of canals, but the real action was in building roads.  Appropriations for road construction began as early as 1821, some of it financed by sale of federal land given the state for development purposes.  To accelerate the progress, the legislature decreed that every able-bodied man aged twenty-one to fifty must work on building roads and highways “or pay an equivalent therefor” in cash.  This command was structured like a progressive tax.  Persons who owned no real estate owed three days labor each year, people who owned less than eighty acres owed four days, and so on up to a maximum of ten days.

As for education, the constitution of 1816 contained a clause wholly unknown to the Constitution of the United States.  Indiana’s organic document declared that it was the duty of the legislature to create a system of education extending from township schools to a state university, open to all and tuition-free.

The legislature created township schools and took advantage of congressional land donations to finance them.  It created a manual labor obligation for building schools, just as it had for roads, and authorized local tax levies for education.  Institutions called county seminaries, conceived as secondary schools, covered half the counties by the time of the Civil War.  Following a territorial decision to create Vincennes University in 1806, the new state created Indiana University, which opened in 1825.  County libraries were authorized in the 1820’s, as was a state library.

Indiana had been declared a place free from slavery from its earliest days.  The Northwest Ordinance provided that Indiana should be free even as a territory.  The constitution of 1816 seemed to make this plain enough:  “There shall be neither slavery nor involuntary servitude in this state, otherwise than for the punishment of crimes….”   Notwithstanding the directness of these declarations, the executive and legislative branches periodically blew hot and cold on issues such as immigration and repatriation.  By contrast, the Indiana Supreme Court was almost always a place where antislavery forces prevailed.

Perhaps the most famous case in the court’s history involved an army general who asserted ownership of a young girl named Polly Strong by virtue of his having purchased Polly’s mother, legally, while Indiana was still part of Virginia.  The Supreme Court ruled for Polly Strong, saying: “The framers of our constitution intended a total and entire prohibition of slavery in this State; and we can conceive of no form of words in which that intention could have been more clearly expressed.”  The court took the same position a year later as respects involuntary servitude.  As straightforward as this seems to the modern mind, it did not always or everywhere go down easy.  Illinois courts did not put the last vestiges of slavery to the torch for another twenty-five years.

This attitude about slavery revealed itself in the state’s participation in the Civil War.  Indiana contributed more troops to the Union armies than any state but New York, and when part of a southern-sympathetic legislature refused to appropriate funds to the support the troops, Governor Oliver Morton undertook to borrow and spend millions in support of the cause by executive decree.

The anti-slavery rulings arising from the Indiana Constitution were an important part of the state’s constitutional history, but they hardly stood alone.

In 1854, for example, the state supreme court held that trial courts could appoint counsel for indigent criminal defendants, at state expense.  “It is not to be thought of, in a civilized community, for a moment, that any citizen put in jeopardy of life or liberty, should be debarred of counsel because he was too poor to employ such aid.  No Court could be respected, or respect itself, to sit and hear such a trial.”  This position was all the more remarkable inasmuch as the right to counsel in a federal criminal trial was not established until 1938.  And the U.S. Supreme Court decision compelling all states to provide indigent counsel, Gideon v. Wainwright, was not decided until 1963.

Indiana’s constitution was also held to require exclusion of illegally seized evidence in a criminal case.  The Indiana Supreme Court took this position in 1922, at a time when exclusion was widely unpopular in the national legal community.

Similar robust approaches have long been evident in other fields.  For example, in 1893, the Indiana court held that the constitution authorized admission of women to the bar, notwithstanding that it did not say so (which is what most other state high courts required before acting).  The court said:  “If nature has endowed woman with wisdom, if our colleges have given her an education, if her energy and diligence have lead her to a knowledge of the law, and if her ambition directs her to adopt the profession, shall it be said that forgotten fiction must bar the door against her?”

In the present moment, few would mistake Indiana for a “blue state” chock full of political progressives, but its history and its present illustrate long-standing commitment to fairness, equal treatment, and opportunity.

Randall T. Shepard of Evansville was appointed to the Indiana Supreme Court by Governor Robert D. Orr in 1985 at the age of 38. He became Chief Justice of Indiana in March 1987 and retired from the Court in March 2012, at which point he was the longest-serving Chief Justice in Indiana history and the senior Chief Justice in the country’s state supreme courts.

A seventh generation Hoosier, Shepard graduated from Princeton University cum laude and from the Yale Law School. He earned a Master of Laws degree in the judicial process from the University of Virginia.

Shepard was Judge of the Vanderburgh Superior Court from 1980 until his appointment. He earlier served as executive assistant to Mayor Russell Lloyd of Evansville and as special assistant to the Under Secretary of the U.S. Department of Transportation.

Chief Justice Shepard has served as chair of the ABA Appellate Judges Conference and of the Section of Legal Education and Admissions to the Bar and as President of the National Conference of Chief Justices. Chief Justice John Roberts recently appointed him to the U.S. Judicial Conference Advisory Committee on Civil Rules. He is a trustee emeritus of the National Trust for Historic Preservation and a former chair of Indiana Landmarks, Inc.

He teaches periodically at the law schools of Indiana, NYU, and Yale.

He is married and has one daughter.

Since leaving the Court, Shepard has served as a Senior Judge in the Indiana Court of Appeals and as Executive in Residence at I.U.’s Public Policy Institute. He now chairs the ABA Task Force on the Future of Legal Education and has become a director of Old National Bancorp.

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The 1876 Colorado Constitution contains the strongest declaration of state’s rights of any American constitution: “The people of this state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state.” (Colo. Const., art. II, § 2). The powerful affirmation of the people’s right to govern themselves arose from the conditions of early Colorado and has shaped Colorado ever since.

In modern times, Coloradoan’s right of self-governance has been vigorously exercised, such as by the 1992 citizen initiative adding the Taxpayer’s Bill of Rights (TABOR) to the Colorado Constitution. The strictest tax and expenditure limit in the nation, TABOR requires voter approval for all increases in taxes, and all government spending increases greater than inflation plus population growth.

Back in 1972, big business and big government teamed up to procure the 1976 Winter Olympics for Colorado. But Coloradoans were leery of anything that would promote the state’s already rapid growth. And they did not want their money being used to fund the already-rich International Olympic Committee. So Coloradoans passed a constitutional amendment by voter initiative, forbidding all taxpayer funding for the 1976 Olympics. As a result, the 1976 Winter Olympics were instead held in Innsbruck, Austria, which already had the necessary facilities, having hosted the 1964 Winter Olympics.

In the twenty-first century, the voters of Colorado adopted constitutional amendments for the regulated sale of medical marijuana (2000) and adult use marijuana (2012). In essence, the voters ordered state government officials to conspire to violate the federal Controlled Substances Act by setting up government-supervised systems for the distribution of marijuana. Given total quantities involved in this “conspiracy” (tons of marijuana, and many millions of dollars), the Colorado government officials have, arguably, been committing federal felonies that qualify them as drug “kingpins,” subject to very severe mandatory sentences.

Yet consistent with the “sole and exclusive right” of Coloradans to govern themselves, state executive branch officials and the Colorado General Assembly have obeyed the Colorado Constitution, and created a carefully controlled, highly taxed, government-supervised system for the production and retail sale of marijuana. “Sole and exclusive” indeed.

As a practical matter, Coloradoans in the State’s founding era had no choice but to be their own “sole and exclusive” governors. While there had been mountain men and a few trading posts in Colorado since the early 19th century, substantial American settlement of Colorado did not begin until the discovery of gold in 1858. By 1859, a rush of settlers had created the towns of Denver and Colorado City (today, Colorado Springs), as well as mining camps in the nearby mountains.

Formally, the land that would become the State of Colorado was part of four territories: Kansas (whose population center was in eastern Kansas), Utah (Salt Lake City), New Mexico (Santa Fe), and Nebraska (Omaha). The Colorado settlements were in the far west of the Kansas Territory, near or in the Front Range of the Rocky Mountains.

But the territorial government of Kansas had little influence in Colorado. It was busy with conflict in eastern Kansas between pro‑slavery and anti‑slavery forces. There was a Kansas judge for Colorado, but he never went to Colorado. None of the territorial governments could do much to assist remote Colorado. The settlers were on their own.

The first Colorado governments were created by the people themselves, as “miner’s districts” in the mining regions, as “claims clubs” in farming areas, and as “town companies.” These voluntary associations recorded and certified property ownership, provided courts for settling disputes, and organized vigilance committees for law enforcement. Some towns elected their own legislatures. They created “people’s courts” for criminal prosecutions. The decisions of the miner’s districts were later ratified in the first session of the territorial legislature. They were also approved by the Colorado Territorial Supreme Court. By accepting and integrating the decisions of the ad hoc miners’ courts and other early bodies, the developing territorial courts provided continuity of law.

Early Colorado never devolved into the anarchy that had characterized California in its own early gold rush years. Because about thirty percent of Colorado’s miners had experience in California, they understood the importance of creating effective local self-government immediately. Thus, the miners’ districts were quickly established. Experienced code writers traveled from town to town, helping to create local law.

Defying the nominal authority of the Kansas territorial government, the settlers in September and October 1859 created their own ad hoc government for what they called the “Territory of Jefferson.” Provisional Governor Robert Steele addressed the opening of the Jefferson legislature on November 7, 1859. He explained that the people had been denied protection of life and property; being sovereign, they had taken measures for their security.

As of 1860, Denver had five competing court systems. Meanwhile, “the mountain counties stood by their Miner’s courts, and as much of the Provisional Government as suited them.” W.B. Vickers, “Territorial Organization,” in Legislative, Historical and Biographical Compendium of Colorado (Denver, C.F. Coleman’s Publ’g House 1887), p. 145. Other Coloradans created judicial districts for what they called “Idaho Territory.”

In short, there were multiple governments in Colorado with alleged jurisdiction, and in fact the people of Colorado entirely governed themselves:

“Side by side sat the Idaho “central judicial” officers, the provisional government of Jefferson, the Kansas county officials, the Denver people’s government, scores of miners’ courts, and local governments and vigilante committees. Never had frontier democracy blossomed so vigorously. With popular sovereignty in the saddle, the northern part of Bent’s old empire was already a far cry from the tradition‑bound and caste‑conscious territory of New Mexico. A new kind of democratic, middle‑class, commercial‑minded frontier had arrived on the borders of the Spanish Southwest.”

Howard Roberts Lamar, The Far Southwest 1846–1912: A Territorial History (rev. ed. 2000), pp. 187–88.

As Territorial Secretary Frank Hall later wrote, they were “a free and radically independent people.” 1 Frank Hall, History of the State of Colorado (vol. 1, 1889), p. 369.

The survival of the Colorado Territory was in constant peril. In 1861, as the Civil War began, a Confederate invasion launched from Texas and swept far into New Mexico. The Texans were turned back by Colorado volunteer militia at the Battle of Glorieta Pass, near Santa Fe, in February 1862, a battle known as “the Gettysburg of the West.”

Not long after, and for years to come, Indian wars threatened to wipe out the Colorado settlers.

Three trails led to the Colorado settlements: in the southeast, a branch of the Santa Fe Trail; in the center, the Smoky Hill Trail, from Fort Leavenworth, Kansas, to Denver; and in the north, the South Platte Trail, which traversed Nebraska and then dropped down to Denver. Goods were transported in wagons drawn by oxen or mules.

The white settlers, clustered along the Front Range and in mining towns, could not survive a cutoff of their trade routes with the States. The territory was not self‑sufficient in food, and imports were essential for survival. Not long after the Civil War began, the Smoky Hill Trail and the Santa Fe Trail became too dangerous to use. Federal troops there were sent east, leaving travelers vulnerable to Confederate guerillas and to Indians in the river valleys. The South Platte Trail was the only lifeline connecting Colorado to the States.

The Colorado War began in April 1864, led by the Cheyenne Dog Soldiers—the tribe’s leading military society. In alliance with the Arapahoe, Sioux, Kiowa, Comanche, and Apache, they shut down the South Platte Trail and all other trails. Food prices soared, mail and telegraph communication were cut off, and starvation threatened. When the Governors of Kansas and Colorado asked for federal troops, they were told by the federal commander of the Trans‑Mississippi Theater, General Samuel R. Curtis, “We have none to spare, you must protect yourselves.” Hall, p. 328. For the remainder of the decade, Colorado’s survival was precarious.

In 1861 and 1864, Coloradoans had voted against seeking statehood. Since the federal government bore the cost of administering the territory, Coloradoans would not have to tax themselves to pay for government. Although the thrifty attitude has endured to the present, by the early 1870s the territorial governors appointed from Washington, D.C., had become so corrupt at to be unbearable to the people of Colorado. So they began to seek statehood.

Congress passed the Colorado Enabling Act on March 3, 1875, the final day of the congressional session. President Grant immediately signed it, having called for Colorado’s admission in his December 1873 written message to Congress.

The Colorado Constitutional Convention convened on December 20, 1875. The Convention finished its work by unanimously adopting a proposed constitution on March 14, 1876.

On most issues, including the Bill of Rights, partisan divisions were not important. On issues where there was controversy—such as votes for women or whether to acknowledge the deity in the preamble—the divisions did not break down along party lines.

The fundamental problem for the Convention to solve was not a partisan one. Rather, it was the inherent tension in what the delegates wanted. They knew they did not want a “do nothing” government. To the contrary, their constitution ordered the creation of state institutions for higher education, for care for the insane, and for the blind, deaf, and mute. The delegates required the establishment of “a thorough and uniform system of free public schools,” and that such schools not be racially segregated. The Framers created a commissioner of mines, and ordered the general assembly to enact laws prohibiting child labor in mines, and to enact laws for safe working conditions in the state’s most important industry. The Convention wrote the first American constitution to mention forests, instructing the general assembly to “enact laws in order to prevent the destruction of, and to keep in good preservation, the forests upon the lands of the state.” This was an early manifestation of the Colorado ethos of conservation.

The new constitution further provided that the general assembly “shall” enact “liberal homestead and exemption laws,” “shall” pass arbitration laws, and “shall” enact laws against “spurious, poisonous or drugged spirituous liquors.”

Yet while the Convention had a list of things it mandated the legislature to do, at the same time, the Convention profoundly distrusted the legislature. In the words of one scholar, “The delegates created a legislature and then, as though they regretted their work, they took most discretionary authority from it.” Donald Wayne Hensel, A History of the Colorado Constitution in the Nineteenth Century (Aug. 9, 1957) (unpublished Ph.D. dissertation, University of Colorado), p. 133.

The 1876 Convention was meeting in “the post-Civil War era, when popular distrust of legislatures was at its height.” G. Alan Tarr, Understanding State Constitutions (1998), p. 199. The Colorado Constitution went especially far to hem in the government, with the longest state constitution up to that point in American history. As amended, the Colorado Constitution remains the one of the longest, reflective to Coloradans’ inclination to instruct their government exactly what it should do and cannot do.

Article V, creating the Colorado House of Representatives and Senate, is much longer than Article I of the U.S. Constitution, which creates the Congress. Article V contains many procedural restrictions on the process of enacting legislation. In addition, legislative sessions were limited to forty days, with no legislative sessions in even-numbered years. A variety of constitutional provisions outlaw taxing, spending, or borrowing on behalf of corporations or other private interests. Later, the first constraints on the legislature would be bolstered by amendments, adopted by the people.

The people of the Colorado Territory adopted the Colorado Constitution on July 1, 1876: 15,443 in favor and 4,052 opposed.

Colorado’s Fourth of July celebrations in 1876 may have been the most exuberant in the nation. A large parade in Denver was led by the Colorado militia, with officers on white horses and the troops on black ones. Each of the thirty-eight states was honored with its own float. On August 1, 1876, President Ulysses Grant issued the proclamation making Colorado the thirty-eighth state.

David B. Kopel is adjunct professor of constitutional law at the University of Denver, Sturm College of Law. This essay is adapted from his article The Right to Arms in Nineteenth Century Colorado, 95 Denver University Law Review 329 (2018).

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Consider some recent examples of the Court admitting errors on constitutional issues.  In United States v. Curtiss-Wright (1936), the Court upheld a statute that delegated to President Franklin D. Roosevelt authority to prohibit the sale of arms in the Chaco region in South America whenever he found “it may contribute to the reestablishment of peace” between belligerents.  The Court then added extraneous language (judicial dicta), claiming that the President possesses “plenary and exclusive” power over foreign affairs and serves as the “sole organ” in external affairs.  Anyone reading the text of the Constitution would understand that the Framers did not place all power over external affairs in the President.  Clearly that power is allocated to both Congress and the President.

For the phrase “sole organ,” the Court relied on a speech given by John Marshall in 1800 when he served in the House of Representatives.  The year marked an election contest between President John Adams and Thomas Jefferson.  Supporters of Jefferson in the House wanted to either impeach or censure Adams for turning over to England an individual charged with murder.  During his defense of Adams, Marshall used this language: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

The phrase “sole organ” requires close examination.  “Sole” means exclusive but what did he mean by “organ”?  Simply the President’s duty to communicate to other nations U.S. policy after it had been decided jointly by the elected branches?  Anyone reading the entire speech would understand that Marshall was not investing the President with plenary and exclusive power over external affairs.  Instead, he merely defended Adams for carrying out a provision in the Jay Treaty that allowed each country to deliver up to each other “all persons” charged with murder or forgery.  The person that Adams turned over to the British, Thomas Nash, was charged with murder.  Adams was not making foreign policy singlehandedly.  He was carrying out a treaty.  By the time Marshall completed his defense of Adams, Jeffersonians considered his argument so tightly reasoned that they dropped plans for impeachment or a censure vote.  It is evident that the Supreme Court in Curtiss-Wright merely relied on a sentence by Marshall and failed to read his entire speech to put that sentence in proper context.

Scholars immediately faulted the Supreme Court for the erroneous use of Marshall’s sole-organ speech.  However, from one decade to the next, executive agencies and federal courts relied on the sole-organ doctrine to promote independent presidential power in external affairs.  As noted by Harold Koh in his book, The National Security Constitution (1990), “lavish description of the president’s power is so often quoted that it has come to be known as the ‘Curtiss-Wright so I’m right’ cite—a statement of deference to the president so sweeping as to be worthy of frequent citation in any government foreign-affairs brief.”

Litigation in the George W. Bush administration led to second thoughts about the sole-organ dicta.  In signing legislation in 2002, President Bush objected that several provisions “impermissibly interfere with the constitutional functions of the presidency in foreign affairs, referring to the President’s authority to “speak for the Nation in international affairs.”  Implicitly, if not explicitly, he relied on Curtiss-Wright dicta.  Litigation remained in the federal courts for a number of years, with the D.C. Circuit at one point holding that the case was a political question unfit for the courts, a position the Supreme Court rejected in 2012.

Turning to the merits, the D.C. Circuit on July 23, 2013 upheld independent presidential power in foreign affairs by relying five times on the sole-organ dicta.  It acknowledged that the language was dicta, but emphasized it was Supreme Court dicta.  It demonstrated no understanding that the sole-organ doctrine was erroneous.  The opinion by the D.C. Circuit prompted me to file an amicus brief with the Supreme Court on July 1, 2014, explaining that the purpose of Marshall’s speech in 1800 was to defend President Adams for carrying out a treaty provision and that nothing in the speech promoted independent presidential authority in external affairs.  I urged the Court to correct the error in Curtiss-Wright.  When the Court is in session, the National Law Journal each week selects a brief that merits attention.  On November 3, 2014, it selected mine, featuring this heading: “Can the Supreme Court Correct Erroneous Dicta?”

On June 8, 2015, in Zivotofsky v. Kerry, the Supreme Court rejected the sole-organ doctrine that had magnified presidential power in external affairs for 79 years.  In doing so, it proceeded to create a substitute model that promotes independent presidential power in external affairs.  It did that by first attributing to the President the quality “of unity at all times.”  Anyone who studies the presidency recognizes that administrations regularly display inconsistency, conflict, disorder, and confusion.  Memoirs written by top officials after their retirement highlight the infighting and disagreements prevalent within an administration.

To the quality of unity the Court added four other characteristics of the President: decision, activity, secrecy, and dispatch, borrowing those words from Alexander Hamilton’s Federalist No. 70.  Why would the Court assume that unity plus those four qualities are inherently positive in nature and consistent with constitutional government?  The five qualities could easily describe a monarchy or dictatorship.  Moreover, anyone familiar with the record of Presidents, particularly after World War II, would understand the costly record of Truman in Korea, Johnson in Vietnam, Reagan in Iran-Contra, Bush II in Iraq, and Obama’s decision to order military force against Libya, leaving behind a country broken legally, economically, and politically, providing a breeding-ground for terrorism.  For further details on the sole-organ doctrine, see my article “The Staying Power of Erroneous Dicta: From Curtiss-Wright to Zivotofsky,” 31 Constitutional Commentary 149 (Summer 2016).

For another recent action by the Supreme Court to correct an earlier decision, one can review the Japanese-American cases of Hirabayashi (1943) and Korematsu (1944).  On February 19, 1942, President Roosevelt issued Executive Order 9066, leading to various actions against Japanese Americans.  A month later, Congress passed legislation to ratify the executive order.  In the first case, the Court upheld a curfew placed on Japanese Americans on the west coast.  In the second case, the Court supported the relocation of Japanese Americans (two-thirds of them U.S. citizens) to detention camps.  With no evidence of disloyalty or subversive activity, the United States imprisoned Japanese Americans solely on account of race.  General John L. DeWitt, who established the curfew, believed that all Japanese Americans, by race alone, are disloyal.  He believed that individuals of Japanese descent belong to “an enemy race” whose “racial strains are undiluted.”

Aided by scholars, Hirabayashi and Korematsu returned to court in the 1980s after newly discovered documents revealed the extent to which executive officials had deceived federal courts and the general public.  A report prepared by the War Department contained erroneous claims about alleged espionage efforts by Japanese Americans.  With abundant evidence of executive branch efforts to deceive the judiciary, Hirabayashi and Korematsu filed a writ of coram nobis, charging the government with committing fraud against the court.  Through those actions, in the lower courts, their convictions were reversed.

Also in the 1980s, Congress created a commission to gather facts and determine the wrong done by Roosevelt’s order.  Released in December 1982, the commission’s report stated that the order “was not justified by military necessity” and that the principal factors shaping those decisions were “race prejudice, war hysteria, and a failure of political leadership.”  To the commission, the decision in Korematsu “lies overruled in the court of history.”  In 1988, Congress passed legislation to acknowledge “the fundamental injustice of the evacuation, relocation, and internment” of Japanese Americans.  At that point the Supreme Court had sufficient evidence that its decisions in 1943 and 1944 were defective and needed to be repudiated.  It chose not to do that.

Not until June 26, 2018, did the Supreme Court admit error in Korematsu.  Writing for the Court in Trump v. Hawaii, Chief Justice John Roberts stated that Korematsu “was gravely wrong the day it was decided.”  If that is so, why did the Court take 74 years to make that admission?  Given the Court’s acknowledgment that Korematsu was defective, what about Hirabayashi?  Is that still good law?  Why didn’t the Court repudiate both decisions?

Conclusions

In an article published in 1962 in the NYU Law Review, Chief Justice Earl Warren discussed the Court’s role in safeguarding individual rights.  As to the Japanese-American cases in 1943 and 1944, he offered this explanation: “To put it another way, the fact that the Court rules in a case like Hirabayashi that a given program is constitutional, does not necessarily answer the question whether, in a broader sense, it actually is.”  Clearly that is a repudiation of judicial finality.  Expecting courts to regularly protect constitutional liberties is ill-advised.  Warren believed that the American political system requires the judiciary to play a restricted role: “In our democracy it is still the Legislature and the elected Executive who have the primary responsibility for fashioning and executing policy consistent with the Constitution.

Louis Fisher is Scholar in Residence at the Constitution Project.  During his four decades with the Library of Congress, from 1970 to 2010, he served as Senior Specialist in Separation of Powers with the Congressional Research Service and Specialist in Constitutional Law with the Law Library of Congress.  His 27 books include the forthcoming: Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution (University Press of Kansas, spring of 2019).

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Although there is a general belief that courts are reliable guardians of individual rights, the pattern of litigation does not support that position.  Congress and state legislatures have often been more reliable protectors of minority rights and civil liberties than the Supreme Court.  The doctrine of judicial finality has been thrust aside in many broad areas, including the rights of blacks, women, and religious minorities.

In Dred Scott v. Sandford (1857), the Court concluded that Congress had no authority to prohibit a citizen from owning slaves north of the dividing line in the western territories.  In his inaugural address in 1861, President Lincoln addressed the issue of judicial finality, stating that “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”  In legislation enacted in 1862, Congress asserted its independent constitutional authority by prohibiting slavery in the territories.  What the Supreme Court said in Dred Scott Congress could not do, it did.

In 1875, Congress passed legislation to provide blacks equal access to public accommodations, including theaters, restaurants, inns, and public transportation.  In the Civil Rights Cases of 1883, the Supreme Court declared the statute unconstitutional.  Not until 1964 did Congress again pass legislation providing for equal access to public accommodations.  What could have been accomplished in 1875 had to wait nearly a century because of judicial obstruction.

As with blacks, women learned that their constitutional interests were better protected by legislative bodies, at both the state and national level.  A good example is the experience of Myra Bradwell.  After studying law, she applied for admission to the Illinois bar in 1869.  A panel of four male judges denied her application solely on the ground that she was a woman.  They did suggest that action by the state legislature was an option.  In 1872, it passed legislation stating that no person “shall be precluded or debarred from any occupation, profession or employment (except military) on account of sex.”

Bradwell then took the issue to the Supreme Court, hoping to establish a national right of women to practice law.  A unanimous Court in Bradwell v. State (1883) held against her.  A concurrence by Justice Joseph P. Bradley insisted that the civil law, “as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman.”  He insisted that man “is, or should be, woman’s protector and defender.”  The “natural and proper timidity and delicacy” of women made them “unfit” for many occupations, including law.  Reaching to a higher level, he argued that a “divine ordinance” commanded that a woman’s primary mission in life is centered in the home.  While some women do not marry, he nonetheless decided that a general rule imposed upon women the “paramount destiny and mission” to fulfill the roles of wife and mother.”  To Bradley: “This is the law of the Creator.”

Not until 1971 did the Supreme Court issue an opinion striking down sex discrimination. A unanimous Court in Reed v. Reed declared invalid an Idaho law that preferred men over women in administering estates.  A study by John Johnson and Charles Knapp, published in the NYU Law Review in 1971, denounced the failure of courts to defend the constitutional rights of women.  They concluded that “by and large the performance of American judges in the area of sex discrimination can be succinctly described as ranging from poor to abominable.”

Consider the recent case of Lilly Ledbetter.  In 2007, the Supreme Court split 5-4 in deciding that her claim against Goodyear Tire for pay discrimination had been filed too late.  She had worked there from 1979 to 1998, aware only toward the end of her service that she was paid less than men doing the same work.  The Court held that she had to file within 180 days.  A dissent by Justice Ruth Bader Ginsburg recalled that the Civil Rights Act of 1991 overturned in whole or in part nine decisions of the Supreme Court.  She remarked: “Once again, the ball is in Congress’ court.”  In one of the first bills signed by President Barack Obama, Congress passed legislation in early 2009 stating that discriminatory actions by an employer carry forward in each paycheck, allowing women to file a complaint in a timely manner for relief.

Consider other judicial reversals.  In 1916, Congress passed legislation to regulate child labor in interstate commerce.  Two years later, in Hammer v. Dagenhart, a 5-4 Supreme Court struck down the statute as unconstitutional.  Congress did not accept judicial finality.  It passed legislation to regulate child labor, relying this time on the taxing power.  In Bailey v. Drexel Furniture Co. (1922), an 8-1 decision struck down that legislative effort.  Congress passed a constitutional amendment in 1924 to provide authority under the commerce power to regulate child labor, but by 1937 only 28 of the necessary 36 states had ratified it.

Instead of accepting judicial finality, Congress passed legislation in 1938 to regulate child labor through the commerce power.  In 1941, the Supreme Court unanimously upheld the statute.  As to its decision in 1918, the Court remarked that it “was novel when made and unsupported by any provision in the Constitution.”  A remarkable statement.  Not a shred of constitutional support.  The Court in 1941 repudiated not only the doctrine of judicial finality but the assumption of judicial infallibility.  The motive and purpose of a regulation of interstate commerce are matters, said the Court, “for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control.”

In City of Boerne v. Flores (1997), Justice Anthony Kennedy stated that when the Supreme Court “has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is.  Marbury v. Madison, 1 Cranch, at 177.”  Reference to Marbury lacks any substance.  Nothing in that decision gave the Supreme Court the final word on legal and constitutional matters.  Kennedy made no mention of Goldman v. Weinberger (1986), in which the Court upheld the military’s authority to prohibit Captain Goldman from wearing his yarmulke indoors while on duty.  The following year, Congress passed legislation to permit members of the military to wear religious apparel unless it interferes with military duties.  Congress acted pursuant to its express Article I power to “make Rules for the Government and Regulation of the land and naval Forces.”  The decision in Goldman was little more than an advisory ruling, deferring to whatever Congress later decided to enact.

Louis Fisher is Scholar in Residence at the Constitution Project.  During his four decades with the Library of Congress, from 1970 to 2010, he served as Senior Specialist in Separation of Powers with the Congressional Research Service and Specialist in Constitutional Law with the Law Library of Congress.  His 27 books include the forthcoming: Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution (University Press of Kansas, spring of 2019).

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According to the doctrine of judicial finality, the Supreme Court has the last word in interpreting the Constitution unless it changes its mind or the Constitution is amended.  This doctrine, widely accepted, has no basis in the historical record.  In part, that is because the Court, as with the other political branches, makes mistakes.  Chief Justice William Rehnquist expressed the reason quite crisply in Herrera v. Brown (1993): “It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.”  As this article will explain, when the Court errs it can take six or more decades to recognize a judicial error and announce a correction.

Claims of Judicial Finality

Scholars at times attribute to Chief Justice John Marshall a position he did not promote.  According to Joel Richard Paul in his book Without Precedent: John Marshall and His Times (2018), Marshall “elevated the dignity of the Supreme Court as the final arbiter of the Constitution’s meaning.”  In another study published that same year, The Most Dangerous Branch, David Kaplan states that Chief Justice Marshall in Marbury v. Madison “established that it was the Court that had the last word on what the Constitution meant” and it “has been accepted wisdom since.”

In Marbury, Marshall stated it is “emphatically the province and duty of the judicial department to say what the law is.”  Nothing in that phrase makes any claim of judicial finality.  It merely states that courts decide cases.  One can also say that it is emphatically the province and duty of the elected branches to say what the law is.  Nothing in Marshall’s judicial service supports the belief that he regarded the Supreme Court as supreme on constitutional issues.  His behavior during the impeachment hearings of Judge John Pickering and Justice Samuel Chase demonstrates that he understood the value of sharing that responsibility with Congress and the President.  Marshall wrote to Chase on January 23, 1805, suggesting that members of Congress did not have to impeach judges whenever they disagreed with their legal opinions.  Congress could simply reverse objectionable rulings through the regular legislative process.  The Court could say “what the law is” but so could Congress.

Consider what he wrote to Chase: “I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature.  A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault.”  Those are not the words of someone devoted to judicial superiority or finality.

During Marshall’s lifetime, he was well aware that constitutional decisions by the Supreme Court could be reversed by the other branches.  In McCulloch v. Maryland (1819), the Court upheld the authority of Congress to create a national bank.  That decision did not prevent Congress or the President from reaching a different position at a later date.  That is what happened on July 10, 1832, when President Andrew Jackson vetoed a bill to incorporate the bank.  He acknowledged that those who supported the bank maintained that “its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court.”  He rejected that position.  Congress did not override his veto.  Aware of Jackson’s action, Marshall had full appreciation of the degree to which the elected branches could reverse constitutional decisions by the Supreme Court.  He passed away on July 6, 1835.

Louis Fisher is Scholar in Residence at the Constitution Project. During his four decades with the Library of Congress, from 1970 to 2010, he served as Senior Specialist in Separation of Powers with the Congressional Research Service and Specialist in Constitutional Law with the Law Library of Congress. His 27 books include the forthcoming: Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution (University Press of Kansas, spring of 2019).

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Guest Essayist: Scot Faulkner

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America is built on local government.  The future of our nation depends on local communities remaining at the core of representative democracy.

In 1831, the Frenchman, Alexis Clerel, the Vicount de Tocqueville, along with his colleague Gustave de Beaumont, was sent by the French government to study America.  While their mission was officially to review prisons, their nine-month journey produced one of the great classics on America’s civic culture.

“Democracy in America” was published in two volumes (1835 and 1840).  It remains a foundational document describing American exceptionalism.

At its core is de Tocqueville’s description of local government:

The village or township is the only association which is so perfectly natural that wherever a number of men are collected it seems to constitute itself. The town, or tithing, as the smallest division of a community, must necessarily exist in all nations….

….local assemblies of citizens constitute the strength of free nations. Town-meetings are to liberty what primary schools are to science; they bring it within the people’s reach, they teach men how to use and how to enjoy it. A nation may establish a system of free government, but without the spirit of municipal institutions it cannot have the spirit of liberty.

America has always been a nation of communities.  Its pattern of settlement, through Royal Charters, gave wide latitude for establishing local governance.  Being over 5,500 miles from London, made detailed oversight of colonies impossible.  By necessity, and by desire, colonists embraced local authority over distant rule from a capitol or nation.  When distant rulers attempted to increase their control, colonists ignited a Revolution.

As de Tocqueville explains:

The revolution of the United States was the result of a mature and dignified taste for freedom, and not of a vague or ill-defined craving for independence.

The first form of government was the Articles of Confederation, which created a very weak national government.  External threats and internal dysfunction led to the U.S. Constitution, with extensive safeguards for local sovereignty.

America established a federal government, which means power is shared between national and state government, and the majority of governmental actions take place at the local level.  This is institutionalized in the Tenth Amendment of the U.S. Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Today, America is governed by 87,576 local units.  This includes 3,034 counties, 19,429 municipalities (cities, towns, villages), 16,504 townships, 13,506 school districts, and 35,052 special districts (such as water & sewer, fire, and conservation).

These independent, and interdependent, local governments reflect the diversity that is unique to America.  In America, the preferred government is one closest to those its serves.

de Tocqueville links local government to being fundamental to a free people:

In the township, as well as everywhere else, the people are the only source of power; but in no stage of government does the body of citizens exercise a more immediate influence. In America ‘the people’ is a master whose exigencies demand obedience to the utmost limits of possibility.

Municipal independence is therefore a natural consequence of the principle of the sovereignty of the people in the United States: all the American republics recognize it more or less;

de Tocqueville uses the townships of New England as his primary example of the effectiveness of local government and their role in establishing America’s unique democracy:

The native of New England is attached to his township because it is independent and free: his co-operation in its affairs ensures his attachment to its interest; the well-being it affords him secures his affection; and its welfare is the aim of his ambition and of his future exertions: he takes a part in every occurrence in the place; he practices the art of government in the small sphere within his reach; he accustoms himself to those forms which can alone ensure the steady progress of liberty; he imbibes their spirit; he acquires a taste for order, comprehends the union or the balance of powers, and collects clear practical notions on the nature of his duties and the extent of his rights.

While discourse over major national and global issues attract the most attention, it is local government that most directly affects our daily lives.  The quality of the school children attend, the condition of roads driven, the safety of neighborhoods, the taste and pressure of water coming from the tap, saving lives and property from fire or accident, are locally governed and provided.

de Tocqueville noted the benefits of locally focused government in America:

In no country in the world do the citizens make such exertions for the common weal; and I am acquainted with no people which has established schools as numerous and as efficacious, places of public worship better suited to the wants of the inhabitants, or roads kept in better repair.

He saw local government promoting individual initiative while restraining growth of a centralized state:

As the administrative authority is within the reach of the citizens, whom it in some degree represents, it excites neither their jealousy nor their hatred; as its resources are limited, everyone feels that he must not rely solely on its assistance…This action of individual exertions, joined to that of the public authorities, frequently performs what the most energetic central administration would be unable to execute.

Thanks to the strength of local government, America remains an inspiration for all those who seek free and open societies.

While chronicling America in its early years, de Tocqueville recognized how the United States’ embrace of local governance already served as a model for a better world:

I believe that provincial [local] institutions are useful to all nations, but nowhere do they appear to me to be more indispensable than amongst a democratic people.

The only nations which deny the utility of provincial [local] liberties are those which have fewest of them; in other words, those who are unacquainted with the institution are the only persons who pass a censure upon it.

Scot Faulkner advises corporations and governments on how to save billions of dollars by achieving dramatic and sustainable cost reductions while improving operational and service excellence. He was the Chief Administrative Officer of the U.S. House of Representatives. He started his Congressional career as an intern for Rep. Don Young (R-AK), then served on the legislative staffs of Rep. Arlan Stangeland (R-MN) and Rep. John Ashbrook (R-OH). Faulkner later served on the White House Staff and as an Executive Branch Appointee.

 

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Guest Essayist: Gordon Lloyd

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How did three critical clauses of Article I, Section 8 of the Constitution come into being?  The clauses read: “The Congress shall have the power 1) to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for 2) the common defense and 3) general welfare of the United States.”

The general welfare and common defense clauses made their first appearance in Article III of the Articles of Confederation of 1781. Thus these two clauses have been linked together from the very beginning of the country as part of the undisputed and expressly stated role of the federal government.  They also made their way into the Preamble of the Constitution of 1787.

The union under the Articles of Confederation LIMITED THE REACH OF THE FEDERAL GOVERNMENT to the powers “expressly delegated to the United States.” (Article II.)  The “alliance” between the “sovereign states” was on behalf of their “common defense, the securities 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 the them….” (Article III.)  One power not expressly stated in the Articles was the power to lay and collect taxes.

A major problem under the Articles was agreeing on a formula for raising revenue to fund the limited objectives of the union.  Since Congress did not have the power to lay and collect taxes, requisitions to each of the states had to be filed. Accordingly, one reason for the Constitutional Convention in Philadelphia in 1787 was to secure a reliable source of revenue for the federal government.

The Virginia Plan, introduced by Edmund Randolph and James Madison on May 29, 1787, at the Constitutional Convention, contains 15 Resolutions to “correct and enlarge” the Articles of Confederation.  The first Resolution reminds us that the problem, as far as the Virginia delegates were concerned, lay with the limited powers and not so much the objectives of the Articles.  The goals of the Articles are reaffirmed by the first Resolution: “common defense, security of liberty and general welfare.”  And to secure these ends, the Virginia Plan recommended a radical alteration of the structure and powers of the federal government.  True, nothing was explicitly stated in the Virginia Plan about the power of taxation, but this power was added once the delegates got down to working out the details.

The Framers went through the first draft of the Constitution presented by the Committee on Detail on August 6.  There is a specific reference to the power of Congress to lay and collect taxes.  Congress was also given the power in this first draft “to lay and collect taxes, duties, imposts and excises” thus providing a constitutional source of revenue for the new government.  Congress was also given power on behalf of the general welfare clause, and the common defense.

As it emerged from the Committee on Detail, these three powers of Congress had the potentiality to be very broad reaching indeed.  Particularly unsettling was the unfamiliar power to lay and collect taxes clause designed to cover the “necessary expenses of the United States.” On August 25, Roger Sherman moved that taxes be limited to ” defraying the expenses that shall be incurred for the common defense and general welfare.”  So, according to Sherman, the “necessary expenses of the United States” are those expenses that are incurred on behalf of the common defense and general welfare. The delegates initially dismissed Sherman’s proposal as so obvious it was “unnecessary.”

But Sherman persisted. He was concerned that if the Constitution did not explicitly restrain elected officials by specific limitations on the taxing power, then they will use the taxation power to extend the reach of federal government. On September 4, the delegates agreed with Sherman that “The Legislature 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.” This was unanimously agreed to.  Thus, Sherman got his way in LIMITING the power to lay and collect taxes to items that fell under the common defense and general welfare clauses.

So we can mark September 4 as the date securing the specific linkage between the lay and collect tax clause, the common defense clause, and the general welfare clause.  On September 12 Report the Committee of Style substituted “Congress” for the “Legislature.”

A related question is how did the common defense clause and the general welfare clause make their way into the Preamble of the United States?  We have seen how the Articles of Confederation had a Preamble in which the purposes of the union were “common defense, the securities of their liberties, and their mutual and general welfare.”  The Constitutional Convention followed this precedent.

All through the ratifying debates, opponents of the Constitution, such as Brutus, wondered whether the taxation, common defense and general welfare clauses, instead of being restrictions on the reach of the taxing power of the federal government, as intended, were actually potential invitations for the expansion of the powers of the federal government. What activities of the federal government, said Brutus, could not be included under the taxation, common defense, and general welfare clauses?  The answer, said the authors of the Constitution, was that the power to tax must be clearly associated with items that manifestly concern the common defense and the general welfare.

Professor of Public Policy at Pepperdine University, Dr. Gordon Lloyd is the coauthor of three books on the American founding and sole author of a book on the political economy of the New Deal. His latest coauthored book is The Two Narratives of Political Economy. He currently serves on the National Advisory Council for the Walter and Leonore Annenberg Presidential Learning Center through the Ronald Reagan Presidential Foundation.

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Guest Essayist: Joerg Knipprath

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The next significant impact on the development of the California constitution came during the Progressive Era of the early 20th century. The Lincoln-Roosevelt Republican movement had seized control, first, of the Republican Party and, then, in the 1910 elections, of the state government. The movement was an upper-middle class, college-educated, young, elitist, technocratic reform movement centered in the legal profession, the press, and, to a lesser extent, the independent entrepreneurial class. These reformers had been excluded from the traditional retail politics of the urban machines with their roots in the working classes, strong partisan identity, and “spoils system” of political patronage. They professed to believe in the people and democracy, but a people led by the right kind of leader whose programs would use government to improve the lot of the masses. The people, in turn, would recognize the wisdom of those programs and voice their approval in the voting booth.

In January, 1911, the Progressives had full control of the legislature and had in the governorship perhaps the most popular politician California has produced, Hiram Johnson. That year, a special election was held to vote on, among other things, 23 measures that required amendment of the state constitution were proposed. All but one were approved by the voters.

Among the most significant and enduring, for better or worse, of those changes are the initiative and referendum procedures. Initiatives are brought by petitions signed by voters to enact statutes or constitutional amendments. For a statutory initiative, voter signatures must number at least 5% of the votes cast in the most recent gubernatorial election. For a constitutional initiative, the signature requirement is 8%. In either case, once on the ballot, the initiative requires majority approval to pass.

A referendum is a decision by voters on an action already taken by the legislature. For a statutory referendum, the same signature requirements exist as for a statutory initiative. A constitutional referendum to amend or revise the constitution is different. The proposed amendment or revision must first be adopted by a two-thirds vote of each chamber of the legislature (27 out of 40 in the state senate; 54 out of 80 in the assembly). Then a majority of voters must approve. The legislature can also call a constitutional convention to revise the constitution, a task that, despite periodic clamor by the press, it has declined to perform. Finally, a “mandatory” referendum is required for bonds to be issued, if the bonds are repaid by taxpayer dollars. The legislature and governor must approve, after which a majority of voters must concur. All told, the California constitution has been amended over 500 times since 1879, with topics from criminal law reform, to term limits, to state pension benefits.

A third device of direct democracy is the recall of public officials. While the number of petition signatures depends on the office, for most state-wide offices, signatures equal to at least 12% of the votes cast for that office in the most recent election are required. If enough signatures are collected, two separate questions are presented to the voters. First, a majority must decide that the targeted official should be recalled. A second question decides who should take the recalled official’s place, if the recall is approved. There is no winnowing out of candidates through a primary election. Whoever gets the most votes, wins. A recent, and at the time rather shocking, demonstration occurred in 2003. Governor Gray Davis, a Democrat, was recalled by 55-45%, and Republican Arnold Schwarzenegger was elected with 49% of the vote over a plethora of other candidates.

Although these structural aspects of the Progressive Era amendments have had the most significant impact, other reforms also changed the nature of California politics. The Progressives’ hostility to political partisanship led to the abolition of straight-ticket voting, the adoption of cross-filing in primary elections (a process by which a politician could run for political office on the ballot of more than one political party), and the increase in officially non-partisan offices. Local elections cannot be contested by political parties. Thus, mayors and city councils are elected in nominally non-partisan elections.

Many academics and other reformers long have lauded this push toward meritocratic, non-partisan government. In a sense, it is faithful to the classic republican ideal of leaders dedicated to the common weal, rather than factional self-interest. But, in reality, evidence now shows that these restrictions tend to dilute voter attention and interest, which, in turn, produces more and more frantic efforts to increase voter participation. California’s latest constitutional contribution has been the introduction of the “jungle primary,” in which all candidates of the various parties for a particular office are placed on the primary election ballot. The top two vote-getters then run against each other in the general election. This was supposed to produce more “moderate” winners, rather than the more ideologically extreme candidates produced if each party had its separate primary. Instead, this process appears to increase voter confusion from the large number of names on the primary ballot, and lessen voter interest and involvement if, as often happens, the two names on general election ballot are members of the same party. This has further stultified the resiliency of political parties, especially the Republicans, in California.

California’s governmental structure differs from the federal system. The legislative branch is composed of two chambers, both elected on the basis of population. The executive branch is a “plural executive.” The governor is elected by popular vote, as is, separately, the lieutenant governor. While the President appoints federal department heads with Senate confirmation, in California many such officials (attorney general, secretary of state, treasurer, etc.) are elected as independent constitutional officers. While most of the governor’s powers are similar to those of the President, the governor also has a line-item veto over budgetary items. If the governor opposes a particular legislative budget item, he can veto it entirely or reduce it to a palatable level. That veto can then be overridden by a two-thirds vote of each house of the legislature.

Judges of the local and appellate courts can be appointed by the governor if a vacancy in the office has occurred. For appellate judges, the governor’s candidate must have been approved by the Commission on Judicial Appointments. There is no participation by the legislature. Once appointed, the chief justice and the six associate justices of the state supreme court serve for 12 years, after which they must submit to a retention election. The voters choose whether or not to retain the justice subject to this plebiscite. While retention is almost a foregone conclusion, in the 1986 general election, Chief Justice Rose Bird and Associate Justices Joseph Grodin and Cruz Reynoso were rejected due to their perceived eagerness to overturn all death penalty verdicts that came before them.

The state’s current constitution, in sum, is quite different from its predecessor. But, then, so are the people of the state. The earlier version followed the path of traditional American constitutional structure, with its basic organization of government and its “natural rights” approach. Today’s constitution is a record of over a century of interest group politics. It has long since ceased to be a constitution of law and become a constitution of policy. It is easy to mock the inclusion in a constitution of an exemption from property tax for “Fruit and nut trees until 4 years after the season in which they were planted in orchard form.” But one must not ignore the bigger issue. What started as a reform to get around a political structure controlled by the bosses of entrenched and organized political parties and clubs by creating a system of direct democracy to appeal to the voters directly, has become the playground of well-funded, unaccountable, politically-connected private pressure groups posing as expert technocrats solving problems. In the guise of the “public interest” are private interests achieved. This is the inevitable result of the Progressives’ Platonic vision of themselves leading the masses designed to follow. It is a fit constitution for a California increasingly divided into a highly-educated, highly-compensated elite; organized interest groups of public employees, environmentalists, and ethnic affiliation; a shrinking middle class, and a mass of workers and unemployed struggling to get by.

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

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Guest Essayist: Joerg Knipprath

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California has had two constitutions during statehood, one from 1849 and the other from 1879. Although only a generation separates them, their style, operative principles, and political consequences could hardly be more different. The Constitution of 1849 represented the classic American constitutionalism of the U.S. Constitution and of the Iowa and New York state constitutions that were its direct antecedents. The Constitution of 1879 bore the imprint of the wave of political populism sweeping the country during that decade. Together with subsequent amendments adopted during the Progressive Era, it became–and remains–an instrument of that time and contributes to the state’s radical politics.

The collapse, after about one month, of the quixotic Bear Flag Republic that had been proclaimed at the small town of Sonoma in June, 1846, and the ensuing declaration of American military control over California by Commodore John Sloat, resulted in a de facto military government for the next several years. The war with Mexico and the national controversy over slavery became tangled with the discovery of gold in January, 1848, at John Sutter’s sawmill at Coloma, east of Sacramento, and the ensuing rush of “49ers” into the area. Ordinarily, Congress would have established a territorial government and set California on an eventual path to statehood. But the political difficulty attendant to deciding what to do with the large territory gained from Mexico in the Treaty of Guadalupe Hidalgo resulted in a stalemate in Congress that kept California’s status frozen in place.

Californians had grander ideas. Why not skip territorial status and move directly to statehood? California, after all, was different from the rest of the formerly Mexican territory. California had established towns, a developing economy, good harbors for commerce, and a comparatively sizable population. Texas was different, too, and it had received statehood. Most of the rest of the new lands were wild and unoccupied.

When Congress failed to act, Californians in several towns in the northern, much more populous, part moved to organize representative governments on their own. They were encouraged by various national politicians, such as Missouri’s Senator Thomas Hart Benton, President Zachary Taylor, and the new “civil” governor, General Bennett Riley. The latter two went further, urging Californians to elect delegates to a state constitutional convention.

The convention of 48 delegates met in early September, 1849, in Monterey. Three-fourths of the delegates came from the northern areas (mostly settled by Americans from the Northern states; only 11 came from the Southern California (predominantly settled by American Southerners). The mining districts had elected a number of additional delegates who did not attend because of more pressing matters–mining for gold.

The northern delegates voted for statehood, the southerners preferred territorial status over concerns about taxation. The slavery issue was quickly settled. California would be a free state not due to humanitarian abolitionist sentimentality, but because, as one historian observed, the 49ers “were sensitive on the matter of dignity of hard manual labor, or rather of their particular form of it; they were outraged at the imputation that goldmining was work appropriate for slaves.” Echoing the Northwest Ordinance of 1787, and foreshadowing the 13th Amendment to the Constitution, the convention voted that “Neither slavery nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this state.” At the same time, the convention initially adopted a provision to exclude free Blacks from the state, but eventually reversed itself out of concern that Congress might reject the constitution on that ground.

The most difficult question, one that almost broke up the convention, was the question of the state’s eastern boundary. One faction wanted what eventually became the boundary, another wanted to include present-day Nevada and most of Utah and Arizona. The latter group had on its side the fact that the most common maps at the time and the one used in the treaty of peace showed this version of a “Greater California.” The convention eventually settled for the smaller boundary because of concerns about inability to have representative government for such an expanse, the inclusion of the Utah Mormons who were agitating for their own “State of Deseret,” and Congress’s likely negative reaction against such a massive state.

The constitution prohibited dueling, a restriction that proved quaintly optimistic. In a rough-and-tumble, male-dominated society that was still tinkering with formal legal structures, physical altercations would be a quick and direct way to resolve personal differences. One of California’s first Senators, William Gwin, fought a duel in 1853. Another Senator, David Broderick (a political rival of Gwin), would be killed in a duel by state supreme court chief justice David Terry. Broderick was not Terry’s first dueling victim. Terry was a master of several weapons, from knife to machete to pistol. Terry was shot many years later by a body guard of one of Terry’s former colleagues on the court, Stephen Field, who by that time had become a justice on the U.S. Supreme Court. The body guard, U.S. deputy marshal Neagle, feared that Terry was about to draw a weapon to kill Field.

The structure of the constitution reflected the traditional separation of powers among branches of the government. It was a comparatively brief and concise document produced within six weeks by using the Iowa constitution (mostly) and the New York constitution (some) as models. There was a bicameral legislature, and a plural executive whereby the governor and various other officers were elected independently from each other by the voters. The constitution followed the emerging democratic trend of the 19th century of an elective judiciary at all levels. The state supreme court was composed of a chief justice and two associate justices, with the office of the chief rotating year-to-year. The constitution also contained an extensive declaration of rights. Aside from that list, it addressed miscellaneous issues deemed significant, including the novel concept (derived from Spanish law) that property owned by a woman before marriage or acquired by her by gift or inheritance would remain hers.

The constitution was published in English and Spanish and submitted to the voters, who approved it on November 13, 1849, by 12,061 to 811. The legislature met in San Jose in December and submitted a petition for statehood. Congress, wracked by the slavery issue, did not accept until the Compromise of 1850 was worked out. The President signed the admission of California as the thirty-first state on September 9, 1850, and the constitution formally went into effect. It was amended only three times in the next thirty years.

There matters remained until the financial, political, and ethnic convulsions of the 1870s. The financial panic of 1873 brought unemployment and business losses. The immigration of a large cohort of Chinese brought racial tensions. The general political restlessness and increasing stridency of rhetoric contributed to political instability and the rise of new political associations, particularly the Workingmen’s Party, a pro-labor, anti-capitalist, anti-business, anti-Chinese party. In 1877, voters approved a call for a constitutional convention. Delegates were elected in June, 1879, and the convention gathered in Sacramento in September. The convention was three times as large as that of 1849, but it represented a non-Indian population that had grown from about 50,000 to nearly 900,000. It also took six months, rather than six weeks, to conclude.

It is not necessarily true that more time and man-hours produce a better result. The new constitution was an original work, but it was long, detailed, and prolix. A part of the problem was that the convention met during politically turbulent times and addressed “reforms” that should have been handled, if at all, through the legislative process. Another cause is that state governments exercise all legislative powers not surrendered to the general government. They are not governments of limited and delegated functions. Therefore, restrictions on state governments must be express. Today, the California constitution is even longer, due to the many amendments and the lingering effects of the Progressive Era changes described below. Even after voters in the 1960s and 1970s approved the removal of about 40,000 words by the Constitution Revision Commission, it is twelve times as long as the U.S. Constitution, making it among the most verbose state constitutions.

Representatives of the farm and labor interests, as well as of business, pushed through a common reform of the time, the creation of a state railroad commission with specified membership and powers. Labor got a maximum-hour provision for public works projects. A new state tax assessment board was created. Specific tax regulations to protect farmers were adopted. As would be expected, these regulations were easily circumvented by creditors, yet they remain part of the constitution. Corporations and banks were particular targets, with provisions passed to increase accountability of directors and shareholders. Labor law, business law, tax law, all matters that should be part of a system of codes brought into the fundamental organic law of government, the state constitution.

Finally, the Chinese. In a stark contrast to the current state government, a lengthy article of the constitution authorized the legislature to protect the state from “aliens, who are, or may become…dangerous or detrimental.” Chinese could not be employed by corporations or on public projects (except as punishment for crime, e.g. road gangs). It prohibited “Asiatic coolieism” as a form of human slavery. These provisions, predictably, were found unconstitutional by federal courts as violations of equal protection or of the federal government’s power over naturalization and immigration. The Constitution of 1879 was adopted by the underwhelming popular vote margin of 54-46 percent. In amended form, it remains the state’s constitution.

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

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Constituting America first published this message from Founder & Co-President Janine Turner over Memorial Day Weekend, 2010, the inaugural year of our organization.  We are pleased to share it with you again, as we celebrate our 9th birthday!  

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

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Guest Essayist: Gary Porter

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“All politics is local”[i]

Black’s Law Dictionary, 4th Edition defines “Constitution” as “The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers.” (Emphasis added)

What if a government represents not a “nation or state” but a city or county full of people; does that government also require a constitution?  What if a state, which has a constitution, incorporates a city or county as a political subdivision of the state, is that city or county bound only by the limits of the state constitution, or must it operate from a more narrow set of powers? There being 89,004 local governments in the United States, this is a significant question.[ii]

It is a question politicians have wrestled with since the first elective government was set in place in 1619 Virginia: what are the limits of authority to be exercised by a state’s lower-tiered governments?

John Forrest Dillon (1831-1914) was an American jurist who served on both federal and Iowa state courts during his lengthy career.[iii] In 1872, while sitting on what would later become the Court of Appeals for the Eighth Circuit, he published an influential extended essay or treatise on the power of states over municipal governments, entitled “Municipal Corporations,” or, later, “The Law of Municipal Corporations.” Dillon argued, quite persuasively it seems, that municipal governments can operate only within the express powers given them by their state governments. Dillon’s idea can be summarized this way:

“A municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words (from the state); second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation-not simply convenient, but indispensable; and fourth, any fair doubt as to the existence of a power is resolved by the courts against the corporation.”[iv]

In essence, since they are created by the state, local governments exist to perform the tasks of the state at the local level. This makes perfect sense. If it were otherwise, an additional constitution would seem to be required; no government should be allowed to operate without clearly specified limits to its power, or tyranny would soon commence. And if a city, for instance, were to operate with only the bounds provided by the state constitution, conflicts would quickly arise over the boundary between the city’s and state’s jurisdiction. Confusion would reign supreme.

“The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse,” said James Madison on the floor of the Virginia Ratifying Convention in 1788. A hundred years later, America’s cities were growing by leaps and bounds. Tax revenues were increasing exponentially and corruption soon followed. Grafting, which is the unscrupulous use of a politician’s authority for personal gain, was a common practice in utility franchising and public works projects. To make matters worse, local governments borrowed outrageous sums of money in order to attract big businesses and railroad com­panies. Unable to pay businesses back, local officials dissolved their cities and left the debt to the state. Lord Bryce of England observed in 1888: ‘There is no denying that the government of cities is one conspicuous failure of the United States.’”[v]

In Hunter v. Pittsburgh (1907), the Supreme Court cited Dillon’s Municipal Corporations and fully adopted his view of state power over municipalities. Note, this was while Dillon was yet alive – what an honor to have your work cited by the highest court in the land!

Today, the municipalities of forty states operate under some form of Dillon Rule, my home state of Virginia being one of them. There are different versions; some states apply Dillon’s Rule only to cities, some only to counties (Alabama) some only to townships (Indiana).

Louisiana applies the rule only to “pre-1974 charter municipalities.”

The alternative to Dillon’s Rule is called Home Rule,[vi] the principle that local government can exert broad-based power, only restrained by the state and national constitutions. We should realize that before Dillion published his ideas in 1872, there was only home rule or its un-named equivalent for the nearly one hundred years that came before Dillon under the Constitution. Whether a local government is governed by the Dillon Rule or Home Rule, the ultimate decision regarding what power they do possess resides with the state government.

But Dillon’s Rule is increasingly coming under attack. Many elected officials of localities controlled by Dillion’s Rule today contend they are “handcuffed” by its restrictions.[vii]  They argue that Dillion’s Rule provides them little to no power to deal with certain problems, particularly growth within their jurisdiction or technologically complex issues such as fracking, which may extend across jurisdictional boundaries. The proponents of Home Rule argue that there are areas where state power should not infringe on that of local government and many are pushing to have their state either change completely to Home Rule or at least loosen the restrictions of Dillon’s Rule. Many states only apply Home Rule to certain municipalities. Arizona, for example, only applies Home Rule to cities with a population of at least 3,500 people. Thirty-one states apply either straight Dillon’s Rule or a combination of Dillon’s Rule and Home Rule to local jurisdictions.

One problem with Home Rule is uniformity. City governments operating under Home Rule may vary significantly in the quality and effects of their governance due to the way various administrations over the years have exerted their more loosely defined power.  Under Dillon’s Rule municipalities generally operate from a standard set of powers and/or restrictions.

The states of the United States were intended to be, essentially, laboratories within which “experiments” in government could be tried.  The Tenth Amendment supports this view, stating that whatever political power was not delegated to the national government remained with the states and their people.  Whether Home Rule or Dillon’s Rule or some combination of both will win out remains to be seen. In any case, the idea of a self-ruling people demands that the decision not be left to the politicians.

Gary Porter  is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[i] Variously attributed to Associated Press Washington bureau chief Byron Price (1932) and to Chicago writer Finley Peter Dunne (1867-1936), but most famously used by former Speaker of the House Tip O’Neil.

[ii] https://www.census.gov/newsroom/releases/archives/governments/cb12-161.html.

[iii] https://en.wikipedia.org/wiki/John_Forrest_Dillon.

[iv] City of Clinton v Cedar Rapids and the Missouri River Rail Road Company, accessed at: https://supreme.justia.com/cases/federal/us/110/27/.

[v] ACCE-White-Paper-Dillon-House-Rule-Final, accessed at: https://www.acce.us/app/uploads/2016/06/2016-ACCE-White-Paper-Dillon-House-Rule-Final.pdf.

[vi] https://en.wikipedia.org/wiki/Home_rule_in_the_United_States.

[vii] Is Home Rule the Answer? Accessed at https://www.brookings.edu/research/is-home-rule-the-answer-clarifying-the-influence-of-dillons-rule-on-growth-management/

Guest Essayist: Gary Porter

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Once upon a time in America, before the Constitution was ratified, the state courts were the only game in town (and in each state). But there was also a time in America when there were no courts whatsoever.

In early May 1607, stepping off the ship Susan Constant, in chains, was none other than Captain John Smith.  Smith was one of 105 men and boys, plus 39 sailors who had made the perilous 144 day voyage from England.

Smith was among the most enterprising and useful members of the colony, traits that served to make others of the company jealous of his influence. Midway through the voyage Smith had been absurdly charged with plotting to murder the thirteen member ruling council, usurp the government, and make himself King of Virginia. He was confined for the remainder of the voyage. The charge was absurd in the extreme since no one on the three ships making up the small expedition even knew the names of the council members; they were sealed — to be revealed only upon arrival in America.

On their arrival at what would be called Jamestown, Smith was liberated and the roster of councilmen’s names opened, only to reveal that Smith had been assigned as one of the thirteen members.  Smith complained of his unjust imprisonment and demanded a trial but could not obtain one: there was no court! The settlers quickly realized they had other pressing matters: namely, survival!  Half the settlers would die in the first six months; all the while, Smith proclaimed his innocence but was not allowed to take his seat on the council.

When Smith’s enemies could postpone it no longer, a hearing of the case was held and Smith was acquitted of all the charges against him; soon after, he took his rightful council seat.[1]

Shifting to the north, one of the first acts of the Pilgrims of Plymouth after establishing themselves as a “civil body politic” by means of the Mayflower Compact was to establish The General Court of Plymouth Colony, the first to establish a complete legal code in America.[2]

Eventually, as each of the American colonies was settled, courts were established to handle the inevitable squabbles between settlers.

Fast forward to 1781.  One of the chief defects in the Articles of Confederation was that it provided no court system above the state level. With no supervision from above, state courts ruled pretty much as they pleased, not always to the satisfaction of all concerned. The consistent rulings of the Massachusetts court system in favor of creditors and against poor farmers sparked the infamous Shays Rebellion[3] in which, not long after they had fought side by side, Massachusetts farmers and Massachusetts militiamen formed opposing lines and opened fire on each other outside Springfield Arsenal.

Then came 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,” so says Article 3, Section One of the U.S. Constitution.  This clause obviously enables creation of the federal court system but the Constitution has little to say about the state court systems:  The Judges in every State “shall be bound” to view the Constitution as the “the supreme Law of the Land” (Article VI), and the “[t]rial of all Crimes, except in Cases of Impeachment, shall be … held in the State where the said Crimes shall have been committed” (Article III, Section 2). That’s pretty much all the Constitution has to say!

About one million cases are filed in the U.S. federal court system each year, while more than 30 million are filed in state courts.[4]

Today, state courts are considered courts of “general” jurisdiction. They hear all the various types of cases not specifically reserved to federal courts. Just as the federal courts interpret federal laws, state courts interpret state laws (although federal courts also get to interpret state laws).

Examples of cases typically heard in state courts include:

  • Violations of state law. Most criminal activity falls in this category, such as robbery, assault, murder, and many drug-related crimes.
  • Controversies arising out of the state constitution or other state laws.
  • Cases in which the state is a party, such as state tax violations.
  • Most real estate cases, malpractice, personal injury cases, and contract disputes.
  • All family, divorce, custody, inheritance and probate cases.
  • Nearly all traffic and juvenile cases

The structure of state court systems varies considerably but there are similarities. To get an idea of what the structure of state courts look like some example states, click on the links below:

The “workhorse” of any state court system is the trial court. This is the lowest level of court and usually where a case or lawsuit will originate. It may be a court of general jurisdiction, such as a circuit court, or it may be a court of special or limited jurisdiction, such as a probate, juvenile, traffic, or family court.

  • Probate courts handle the administration of estates and probating of wills.
  • Family courts focus on cases involving custody and child support, neglect and abuse, and, sometimes, juvenile crime or truancy.
  • Traffic courts handle alleged violations of traffic laws.
  • In some states, special housing courts, or landlord-tenant courts, have been established.
  • Small-claims courts handle civil matters in which the dollar amount at issue is below a certain amount.
  • Juvenile courts generally handle truancy and criminal offenses committed by minors.

Each state has a Supreme Court which is generally considered the court “of last resort” unless and until the matter qualifies for a hearing in the federal court system.

While most federal judges are appointed to their positions, the majority of state trial court judges are elected by the citizens. In some states, supreme court justices are appointed by state governors or legislatures, while in others, justices are elected.

Throughout Virginia’s history (my state), the selection and term of state judges has varied. In 1776, the state legislature selected state judges to serve a life term. Between 1850 and 1864, the citizenry elected state judges. Between 1864 and 1870, state judges were nominated by the governor and confirmed by the state legislature. After 1870, the General Assembly assumed full responsibility for the selection of state judges in Virginia.

State courts play a vital role in our nation’s legal system.  If you are ever a party to a lawsuit or are called as a trial witness, it will likely be in a state court. Without the fifty state court systems the federal court system would be overwhelmed.  State courts are usually easy to locate and provide a great opportunity to introduce school children to the U.S. legal system.

Gary Porter  is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[1] A famous mural depicting the trial sits in the Cuyahoga County Courthouse.

[2] https://worldhistoryproject.org/1636/10/4/the-general-court-of-the-plymouth-colony-instituted-a-legal-code

[3] https://en.wikipedia.org/wiki/Shays%27_Rebellion

[4] https://www.bjs.gov/index.cfm?ty=tp&tid=30

Guest Essayist: Marc Clauson

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What is the purpose and impact of Article IV, Section 4 of the U.S. Constitution in that “The United States shall guarantee to every State in this Union a Republican Form of Government”? How does this form relate to the republican (representative) styles such as Commission Form, County Administrator, Elected Executive, City-County Consolidation, Constitutional Row Offices or Home Rule Authority to ensure power remains in the hands of each American, preventing a monarchy or aristocracy in each state and local government?

The idea of a republican government was raised at the Constitutional Convention in the atmosphere of the just-ended War for Independence.  The primary target of the signers of the Declaration has been the  English king, who was designated a tyrant.  This same target lies in the background in discussions of the governmental form.  In addition, the Founders had read widely in ancient and recent history and had studied many forms of government labeled as republics.  Their conclusions were ambiguous.  They were not agreed as to what a republic was, but they did agree on what it was not.  The meaning of Article IV, Section 4, then has to be understood in this light. For the Founders, it meant simply that government was not a monarchy. So to guarantee a monarchy was to eliminate monarchy as legitimate, but then to “fill in details” as to what it was by drawing on many diverse sources in order to design the best constitutional form.  In a positive sense, therefore, a republic contained elements of democracy, aristocracy and some executive function, though never only a monarchy.  It was also viewed as a form in which all power was limited and checked in various ways.

It is then the task of architects of governmental forms to design governmental structures to discover those institutional structures that promote republican government.  Obviously this means no monarchy (or one-man rule), but that itself does not tell us what forms are best or whether we may have “sneaked” in one-man rule in other guises.  It was in the late nineteenth century, during the Progressive Era, that unique forms of government began to be proposed at state and local levels.

The motives behind the Progressive Movement treated the Constitution as an outmoded document in the light of a complex and changing society.  But one aspect of that movement was a desire for more democracy at all levels of government. By itself, that desire could be beneficial insofar as it marked a return to consent as the basis for governments.  This democratizing trend then was consistent with the spirit of Article IV, Section 4.  However, it’s weakness would be a failure to maximize the use of checks and balances at state and local levels, leaving the elected bodies themselves with virtually sole power with no limits except those imposed by state and Federal constitutions.

In particular, institutions like Home Rule government do bring the people closer to those who govern them, but at the same time, can increase centralization of government.  So even though the officials of those urban areas might be elected, the number of officials elected might be smaller and there might be no enforceable constitutional limits.  It is necessary therefore to carefully design institutions, even though we might construct more democratic processes.

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

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Guest Essayist: Joerg Knipprath

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A wave of state constitutional conventions during the middle of the 19th century reflected the increased “democratization” of American politics that resulted in the election of President Andrew Jackson and the emergence of two modern national programmatic parties, the Democrats and the Whigs. In established and newly-formed states, the growing movement for popular control over government led to reforms of judicial systems by having judges run for political office under partisan aegis and denomination. Today, eight states retain some form of partisan election for their appellate courts, and more do so for their general trial courts.

By the late nineteenth century, the tide turned again, with partisan politics becoming identified with political corruption, urban political “machines,” and party bosses controlling the process from “smoke-filled back rooms.” Over the next several decades, reformers, often working under the label of “Progressivism,” pushed broadly for nonpartisan elections, including for judicial offices. Most new states, as well as some established states, adopted this system in the several decades beginning in the 1880s. About one-third of the states still have nonpartisan elections for their appellate courts; still more do so for their general trial courts.

There were also dissenters to the very idea of elected judges, at least above the level of local trial courts. Legal elites claimed that elections undermined judicial independence and gave short shrift to legal knowledge, experience, and temperament. One alternative would have been to follow the path of European systems that make judges civil servants, with a professional career path focused on passing examinations and embarking on the judicial analog to the old Roman cursus honorum to be selected to higher courts. While such a system makes sense for administrative courts or for courts that address technical issues of contract, property, or even criminal law, American courts address constitutional law controversies, as well. Those questions often overlap with controversial political issues, so that a more complex and difficult balancing act arises between judicial knowledge and independence, on the one hand, and political accountability, on the other.

One reform proposed early in the 20th century by the American Judicature Society was so-called merit selection. A non-partisan commission chooses a list of nominees, from which the governor appoints the judge, with no involvement by the state legislature. Thereafter, the people will vote at the next general election in a plebiscitary “yes-or-no” choice to retain or reject the appointee. Each judge so selected will have to stand in further periodic retention elections. This model was first enacted in 1940 in Missouri. Variants of the “Missouri Plan,” as it was dubbed colloquially, were adopted in about half of the states during the middle of the 20th century for intermediate appellate courts and supreme courts, though in fewer states for general trial courts. Since 1934, California has an inverted variation of the Missouri Plan, for courts above the Superior Court (trial court). The governor selects a nominee who must then be reviewed and confirmed by the state’s Commission on Judicial Appointments, which is composed of the chief justice of the California Supreme Court, the state attorney general, and a specified justice of the intermediate court of appeal. Again, the legislature does not participate.

While the Missouri Plan is still a popular reform proposal, it has come under fire by others who see it, with some justification, as an attempt by an unelected legal elite to entrench itself further in an isolated and unaccountable judicial bureaucracy. That opposition has manifested itself in increasingly divisive judicial retention elections and in some states, rejection of concrete efforts to institute the Missouri system. As to the former, while judges still overwhelmingly win retention elections, in California the vote in these elections has become closer. In the 1986 election, the chief justice and two associate justices of the California Supreme Court were rejected due to the public’s fury with the jurists’ perceived categorical hostility to application of the death penalty. Other critics complain that merit systems are a mirage, in that it is impossible to take partisan politics out of the process. They assert that political influence manifests itself in many ways through the structure of the system and the influence that the governor exerts through “citizen appointees” on the selection commission.

State courts generally have the same powers of judicial review regarding state constitutional law as federal courts have as to matters of federal constitutional law. If a state supreme court strikes down a state law as violating the state constitution, there usually is no review by the U.S. Supreme Court. The state court has acted under “adequate and independent state grounds,” which means that no federal constitutional interest is involved for further review. In addition, state courts can review state laws for their conformance to the U.S. Constitution, statutes, or treaties. Such decisions, whether for or against the state law, are usually subject to review by the U.S. Supreme Court.

In addition to their role in shaping ordinary civil and criminal law, much constitutional law is made through the state courts. One reason is because the U.S. Constitution provides only a “floor” of protection for individual rights. Moreover, the U.S. Supreme Court reviews a relatively small percentage of cases decided by all lower courts, including the 12 federal circuit courts, the 50 state supreme courts, and assorted other courts. State legislatures (and Congress) can expand those rights by statute, and state courts can do so through interpretation of their state’s constitution. While it is not always clear when or whose rights are expanded, rather than contracted, some state courts have been quite active in striking down state laws. For example, in abortion, school financing, same-sex marriage, and criminal procedure, among other topics, state courts have often gone further or, at least, been ahead of federal courts in defining constitutional rights. Compared to the last half of the 20th century, the U.S. Supreme Court has become more reluctant to lead constitutional change during the last couple of decades. This has refocused litigants’ attention on the state supreme courts, a trend that is likely to continue.

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

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Guest Essayist: Joerg Knipprath

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Under the Constitution, the only required court is the U.S. Supreme Court. The creation of lower federal courts has always been entirely at the discretion of Congress. Even if federal courts have jurisdiction, they can only hear cases specified in Article III, Section 2, of the Constitution. They are “limited jurisdiction” courts. However, the Constitution does anticipate the existence of state courts, which, in addition to their duties under state law, would perform the functions of federal jurisdiction if Congress chose not to establish lower federal courts. Even today, state courts can hear cases that involve federal jurisdiction, such as claims that arise under federal statutes or the U.S. Constitution, unless Congress has expressly made hearing that type of case exclusive in the federal courts. Congress has done that in regard to claims where the United States is a party, for example.

State courts, therefore, form the backbone of the American judicial system. Most laws are state or local laws, and most cases, civil and criminal, are heard in state courts. There may be state courts of limited jurisdiction, such as the Small Claims Court, but there is at least one level of “general jurisdiction” trial courts. In California, this court is called the Superior Court, organized by county. In other states, this may be called county court, district court or circuit court. In New York, this is called, rather bizarrely, the Supreme Court. These general jurisdiction courts may have separate departments, such as the probate division or the family law division. There may also be entirely separate specialized courts, such as juvenile courts or, in Delaware, the Chancery Court for business law cases.

In addition, many states have an intermediate appellate court system analogous to the federal circuit courts. These are typically organized by larger geographical areas. They, too, vary in names. In California, this is called the Court of Appeal for the 1st [etc.] District. In some states, this may be called the Appellate Department of the [insert name of general jurisdiction trial court]. All states have a final court of appeal. Usually, this is called [the state’s] supreme court. In New York, it is called the Court of Appeals, since, as noted above, New York calls its general trial court the supreme court.

In many states, as well as in the federal system, the role of intermediate appellate courts and the supreme court differ. Intermediate courts exist substantially to correct errors of law made by trial courts, so there is generally a right to appeal cases from the lower court. Supreme courts, on the other hand, are “courts of law, not of error,” where protecting litigants from the errors of trial courts is merely incidental to resolving significant legal issues for the broader public good. Thus, supreme courts are usually given great discretion by the legislature as to which cases they will review. The U.S. Supreme Court, for example, hears almost no cases on appeal. Rather, review is exercised by granting a writ of certiorari that orders the lower court to certify the record of the case to the Supreme Court for review. Many states follow the same approach. In California, only death penalty cases have mandatory appeal. Everything else is within the state supreme court’s discretion.

Federal judges are appointed by the President, with confirmation by a majority vote of Senators. With some exceptions for specialized, administrative law-type judges, such as the Tax Court, they serve during “good behavior,” i.e. potentially for life, subject to impeachment for constitutionally defined causes. At the state level, selection procedures for judges are so varied as to be incapable of complete description in a brief essay. A general overview must suffice. At the beginning of the country, a common model was to have legislative bodies appoint judges. Thus, the Virginia’s constitution of 1776 declared, “The two Houses of Assembly shall, by joint ballot, appoint judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty…[to] continue in office during good behavior.” This “popular control” was, at least in part a response to the distrust that many Revolutionary War-era Americans had towards the king’s appointed judges as officers of the Crown. Virginia is one of two states that retain legislative appointment in some form.

By the 1780s, a reaction had set in against legislative dominance under the first wave of state constitutions. Many states revised their constitutions over the next couple of decades. The new mode of selection of judges often replicated the U.S. Constitution. Thus, the Massachusetts constitution of 1780 stated that “All judicial officers…shall be nominated by the Governour, by and with the advice and consent of the Council [a body of nine members chosen by the two houses of the legislature jointly with a mostly advisory role to the governor]….” On the other hand, while judges in Massachusetts ostensibly served during good behavior, “the Governour, with consent of the Council, may remove them upon the address of both houses of the Legislature.” This easy removal maintained indirect popular control over the judiciary without having to resort to accusations of bad conduct needed for impeachment. Today, three states, not including Massachusetts, select appellate courts by gubernatorial appointment with legislative confirmation.

One odd characteristic of that Massachusetts constitution was that it permitted the legislative chambers, as well as the governor, to compel the Supreme Judicial Court to render formal opinions on “important questions of law, and upon solemn occasions.” This provision still applies in Massachusetts and a dozen other states. It calls upon that court to issue an “advisory opinion” even in the absence of a concrete dispute. This approach is used in various foreign systems, as well, typically those that follow the German model of having one specialized constitutional court that exercises judicial review. It is rejected under the U.S. Constitution for federal courts and in most state constitutions, which require that the judicial power only functions in concrete “cases or controversies” brought by a plaintiff who has suffered an actual injury and, thus, has standing to sue.

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

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Guest Essayist: Daniel A. Cotter

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This year’s Constituting America’s 90 Day Study has focused on state and local government and, for each state, has discussed the constitution that each state has adopted.  In every instance, the state constitution specifies the branches of government, including a judicial branch.  How state supreme courts work in relation to the United States Supreme Court is mostly a matter of jurisdiction, with the United States Supreme Court and  “such inferior Courts as the Congress may from time to time ordain and establish” created by the United States Constitution.

The Founding Fathers of our nation did not spend as much time debating and did not spend as much time drafting and discussing Article III, which created the federal courts and gave Congress extensive power to determine the structure of the judiciary.

Alexander Hamilton, expressing his views in the Federalist Papers, had a clear view of what powers the judiciary had and how they fit in the three branches of the new national structure.

In Federalist No. 78, Hamilton noted that the judiciary would be the weakest of the three branches because it had “no influence over either the sword or the purse, …It may truly be said to have neither FORCE nor WILL, but merely judgment.” With only the power of the word, and no enforcement powers, the Founders considered the judicial branch as dependent to some extent on the political branches to uphold its judgments.

The Federalist 78 also supported the notion that the nation’s judiciary would serve as lower than, and not superior to, the legislative branch in order only to function as interpreter and not maker of law; Alexander Hamilton in Federalist 78, “The interpretation of the laws is the proper and peculiar province of the courts.”  However, this is not to say that when the John Marshall Supreme Court announced its decision in Marbury v. Madison in 1803, that their finding that “It is emphatically the province and duty of the judicial department to say what the law is” should have been a surprise to the nation.  Hamilton in Federalist 78 stated clearly how the Constitution and other lower laws were to be assessed:

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

State Courts

The state and local courts generally address and rule on cases and controversies that involve law and the constitution of that state.  However, in some instances, those state court rulings can be appealed and challenged in the federal courts.  If the issue is whether a state law violates the Constitution, then federal courts may hear the dispute.  In addition, in some instances, if the jurisdictional thresholds are met, then there might be dual jurisdiction.

An Early Clash

When John Marshall became Chief Justice of the Supreme Court in 1801, his former schoolmate, Spencer Roane, had already served as a member of the Virginia Supreme Court of Appeals for six years.  Marshall was a nationalist, his views developed at least in part from his service in the Revolutionary War and the deprivations he witnessed. Roane, who was aligned with Thomas Jefferson, was a strong states’ rights advocate.  The two clashed a number of times over the years, with Roane ruling in a case that Marshall had been an advocate, Pleasants v. Pleasants. However, Roane would engage in some nullification after Marshall became chief justice.  Roane refused to follow the decision handed down by the Marshall Court in 1815, Martin v Hunter’s Lessee.  Later, after the Court issued McCulloch v. Maryland, which addressed the United States Congressional powers vis-à-vis the state legislative powers in a controversy over the legality of the national bank, Roane wrote several editorials under pseudonyms attacking the Marshall Court’s decision. Roane also wrote a number of articles that where precursors to the Nullification Crisis.

Andrew Jackson

President Andrew Jackson did not care for the Marshall Court 1832 decision, Worcester v. Georgia, which addressed Native Americans rights and tribal sovereignty.  Jackson reportedly stated, “John Marshall has made his decision; now let him enforce it!”  While there is no direct evidence he uttered those exact words, he did write in a letter to John Coffee that “the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”

Conclusion

The federal and state courts are separate entities with different jurisdictional limits and powers.  While state issues might be litigated in federal courts if jurisdictional requirements are satisfied, United States Constitutional issues are ultimately the federal courts to decide.  The Founders at the national and state levels expected the third branch, while co-equal to the other branches, to be the least powerful branch and interpreters only of laws.

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Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

Guest Essayist: Gary Porter

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What is the purpose and impact of Article IV, Section 4 of the U.S. Constitution in that “The United States shall guarantee to every State in this Union a Republican Form of Government”? How does this form relate to the republican (representative) styles such as Commission Form, County Administrator, Elected Executive, City-County Consolidation, Constitutional Row Offices or Home Rule Authority to ensure power remains in the hands of each American, preventing a monarchy or aristocracy in each state and local government?

Further, what is a republic, why must Congress guarantee each state has and maintains a “Republican Form of Government” and how does it do this?

To the Framers of the Constitution, democracy was a hideous form of government. The colorful Fisher Ames, in one of his more measured criticisms, wrote: “Democracy, in its best state, is but the politics of Bedlam; while kept chained, its thoughts are frantic, but when it breaks loose, it kills the keeper, fires the building, and perishes.” Monarchy was obviously unacceptable; a confederation had been tried and found wanting; this left a republic. But a republic which, according to Dr. Benjamin Franklin, must be “kept.” The Constitution’s Article 4 Section 4 contributes to the “keeping.”

The first difficulty Congress faces in guaranteeing each of the fifty States has and maintains a “republican form of government” involves the lack of a consensus over what signifies this “republican form of government.” There never has been a consensus and likely never will be.

James Madison, writing as “Publius,” took a stab at the definition of a republic in 1787/88. Across several of the Federalist essays he identifies seven “republican” attributes. These are neatly summarized by Scott T. Whiteman in his short essay What is a Republic Anyway?[i]

They include:

  1. A government operating under separation of powers; Federalists Nos. 9, 47, 28, 76
  2. Representatives governing during a limited term and/or during good behavior; Nos. 9, 39
  3. Representatives elected by the people; Nos. 9, 39
  4. Power residing in the People; No. 39
  5. A government that is deliberative in action; No. 71
  6. Acknowledging the right of the people to alter or abolish their government; No. 78
  7. A government that prohibits grants of entitlement or nobility; No. 84

Contemporary authors believe additional attributes should be included, such as the Rule of Law and absence of a Monarchy.[ii]

It is easy of course to distinguish a republic from direct democracy, but must all of Madison’s seven features be present before a political entity can be declared “republican?”

When a U.S. territory applies for statehood, Congress first passes an Enabling Act which gives the applying territory the authority to draft a proposed constitution, which is then approved by the state’s citizens and submitted for review by Congress to ensure it reflects the “republican form.” Beyond allowing Congress to ensure the basic requirements of republicanism are met, this also provides Congress the opportunity to identify anything else it objects to in the way the state intends to conduct its affairs. On rare occasions Congress has insisted upon changes to the proposed state constitution before admission, such as when Congress insisted that Utah (the 45th state) first prohibit polygamy.[iii] Similar polygamy prohibitions were required of Oklahoma (46th state), New Mexico (47th state), and Arizona (48th state).

How does Congress ensure a state maintains its republican form? Here is where it gets sticky.

In 1841, Rhode Island was still operating under a government established by their royal charter of 1663. The charter strictly limited suffrage and made no provision for amendment. Groups protesting these restrictions in the charter held a popular convention to draft a new constitution and to elect a governor. In response, the existing charter government declared martial law and set out to “put down the rebellion” (called the Dorr Rebellion, after ringleader Thomas Dorr). One of the “rebels,” Martin Luther (no relation to the 1517 reformer), whose house was damaged during a search by law officers, brought suit claiming the old state government was not “a republican form of government” and all its acts, including its declaration of martial law, were thereby invalid. In Luther v. Borden. (1849)[iv], the Supreme Court declared in dictum that interpretation of the Guarantee Clause is a political, not a judicial question. Said another way: a “Republican Form of Government,” like “High Crimes and Misdemeanors,” is whatever Congress says it is. As noted in the Heritage Guide to the Constitution, “Citizens of a state who believe their state government has departed from the “republican form” should apply to Congress for relief rather than to the courts.”[v]

More modern charges of departure from a “republican form” involve the issue of popular referendums, which critics say embrace direct democracy. By way of review, in a referendum, the voters decide a policy issue outside the purview of their elected representatives. A referendum obtaining a majority vote generally goes into effect without further action by the legislature. The use of initiatives and referendums is written into the constitutions of twenty-six states, particularly those in the west, and these states contain over fifty percent of the U.S. population so many Americans encounter them. Popular initiatives, referendums, or popular recall of elected representatives are admittedly all forms of direct democracy, but does the use of one mean the government is no longer republican? Every state except Delaware ratifies state constitutional amendments through a vote of their citizens rather than by their elected representatives. This is similar to one of the two methods of ratifying a U.S. Constitutional amendment, does this depart from “republicanism.” No one has complained of this to the courts. Ironically, as morbid proof that we don’t have a democracy in America, in the thirty-one states where voters popularly- approved constitutions prohibitions of same-sex marriage, all it took was one Supreme Court decision (Obergefell v. Hodges) to overturn them all.

Turning to local government and the question of republicanism, we find that local government can take many forms.

In the Commission form of government, often encountered in cities or counties, voters elect a small commission, typically of five to seven members who comprise the legislative body of the city or county and, as a group, are responsible for taxation, appropriations, ordinances, and other general functions. Individual commissioners are also usually assigned specific executive responsibilities such as public works, finance, or public safety. This form of government thus combines legislative and executive functions in the same body.

In the County Administrator form, an Administrator is usually appointed by an elected council/commission. The Administrator then is responsible for administration of all governmental departments, subject to the council’s control.

The Elected Executive form is similar except that the Executive is elected by the polity instead of being appointed by the council or commission.

Constitutional Row Officers derive their name from the fact that the departments were first listed in a row on election ballots. In the Commonwealth of Pennsylvania, for example, row officers include: Clerk of Court, Controller, Coroner, District Attorney, Prothonotary, Recorder of Deeds, Register of Wills, Sheriff and Treasurer.

Home Rule Authority describes the power of a local city or county to set up its own system of self-government without requiring a charter from the state. Full home rule is allowed in thirty state constitutions and limited home rule in another nine.[vi] A city or county that adopts a home rule charter has the ability to amend its governmental organization and powers to suit its needs; in essence, they establish a local constitution.

As you can see, each of these forms embraces a republican form of government, at least in that elected representatives are used for day-to-day governing rather than involving the people themselves.

According to the U.S. Census Bureau, in 2012, there were 89,004 local governments in the United States.[vii] This included such things as school boards and regional planning authorities.[viii] Compare this with the fact that there are only 50 state governments and one (albeit ginormous) national government and you can see where the bulk of governing takes place in these united States: at the local level. Americans interested in serving their fellow citizens are advised to set their sights on local government. However, a brief and certainly not statistically significant analysis of current U.S. Representatives found only three in ten first served in local government. Twice as many held their first elective office in one of the 7,383 state legislature seats (nationwide).[ix]

While many Americans seem to give little attention to their national government, even fewer are interested in their local governments, particularly who is to represent them in those governments and how they actually govern. Voter turnout in national elections is alarmingly low, but turnout in state and local elections even worse;[x] some school board and city council members have reportedly been elected by only 10-15 percent of the eligible voters. And elections at the state and local level are often decided by amazingly small margins, even by a single vote.[xi] Our citizens’ lack of interest in local government can be confirmed by attending or viewing any televised city council or county board of supervisors meeting. There, with few exceptions, you’ll find a nearly empty room with the council members speaking, if to anyone but themselves, to a small handful of citizens. This is ironic since the day-to-day lives of Americans are arguably more influenced by local laws, codes and ordinances than those of their state or nation, local zoning laws being a prime example. On the other hand, polls show more Americans (71%) trust their local governments than their state governments (62%).[xii]

The cry of: “take back our democracy” is often heard these days, particularly from many on the political left. It is a silly notion, considering that our republican form of government is what is really at stake. But the phrase is useful; it brings in donations, lots of donations. Instead of waving “take back our democracy” signs , might I instead suggest we form a line and register as candidates for every elected office, from dog-catcher on up?

Next time you see your Congressman or Congresswoman, ask them how Congress guarantees to each state a republican form of government and see what response you get.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

 

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[i] https://www.theamericanview.com/constitution-course-supplemental-assignments/what-is-a-republic-anyway/.

[ii] Heritage Guide to the Constitution, David F. Forte and Matthew Spalding, ed., Washington, D.C. 2014, Guarantee Clause, p. 369.

[iii] https://en.wikipedia.org/wiki/Utah#Utah_Territory_(1850%E2%80%931896).

[iv] Luther v. Borden. Luther v. Borden, 48 U.S. (7 How.) 1 (1849).

[v] Heritage Guide, p. 370.

[vi] https://en.wikipedia.org/wiki/Home_rule_in_the_United_States.

[vii] https://www.census.gov/newsroom/releases/archives/governments/cb12-161.html.

[viii] The 89,004 includes 3,031 counties, 19,522 municipalities, 16,364 townships, 37,203 special districts and 12,884 independent school districts.

[ix] https://en.wikipedia.org/wiki/List_of_United_States_state_legislatures.

[x] https://www.governing.com/topics/politics/gov-voter-turnout-municipal-elections.html.

[xi] https://www.npr.org/2018/11/03/663709392/why-every-vote-matters-the-elections-decided-by-a-single-vote-or-a-little-more.

[xii] https://news.gallup.com/poll/195656/americans-trusting-local-state-government.aspx.

Guest Essayist: Bethany Marcum

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Known as “The Last Frontier,” Alaska was the forty-ninth to ratify the U.S. Constitution and be admitted to the United States. The Alaska State Constitution currently in use was actually ratified in 1956 before Alaska entered the Union, and went into effect upon statehood January 3, 1959

While there are in theory strict limits on federal governing powers as laid out in the Tenth Amendment to our U.S. Constitution, in the real world of at least one state, Alaska, the federal government wields enormous power and control. To understand how this came to be, one must look at Alaska’s history.

The area now designated as the state of Alaska was originally inhabited by indigenous people. Russians and European explorers visited and settled in the 1700s. Expeditions found the region rich in natural resources, with particular interest to the fur traders of that day. Russian settlement grew, but in 1867, the area was purchased from Russia, and became a department of the U.S. government.

The military was the most obvious presence in Alaska until the 1890s when gold was discovered. That brought a rush of miners and other settlers, causing much activity, and reorganizing the region into a federal government district.

In 1912, another reorganization designated the area as the Territory of Alaska. As airplanes became more prominent, settlement continued away from the road system, and the population increased.

Due to its strategic location, Alaska was very important during the war years and as it grew, so did a movement for statehood. The issue caused fierce debates. The state’s small population relative to the rest of the country made it obvious that residents couldn’t produce the revenue needed to develop the immense land mass and to create a viable economy. The rest of the country feared Alaska could not even take on the responsibility of creating a formal state government.

Eventually, however, statehood proponents prevailed and on January 3, 1959, Alaska entered the union as a full-fledged state. But it came at a high price: the federal government retained title to the majority of lands. In fact, even today, over 60% of the land in Alaska is owned by the federal government.

Contentious deliberations over land and resource ownership and control continued for decades, resulting in two landmark federal laws, the Alaska Native Claims Settlement Act in 1971 and the Alaska National Interest Lands Conservation Act in 1980. Even so the problems were not resolved; today, management of the resources on lands in Alaska continues to create friction between D.C. agencies and the state. The most recent example of this was the case of Sturgeon v. Frost, heard twice by the U.S. Supreme Court. The decision was a victory for Mr. Sturgeon and the State of Alaska, over the National Park Service. Still, overzealous federal agencies continue to lock up Alaska’s land and resources as political winds blow first one direction, then the other.

The population of Alaska is small even today, and just as feared during the statehood debates, the 49th state remains heavily dependent on the federal government. This dependency comes in many forms, from federally subsidized bypass mail for sparsely populated Alaskan villages (essentially an air freight service), to federal obligations to the state’s indigenous people through special health care and other programs.

Due to the large amount of federal land, and as a result of the federal government’s role in funding so many programs and projects in Alaska, it is often the federal government which makes the rules—not the state.

This has led to great difficulty for Alaska in developing its resources. In the area of natural resource development, federal overreach is particularly devastating. Resource development is the predominant driver of Alaska’s private economy. Lack of infrastructure, a harsh climate and distance from markets and populations have resulted in Alaska having very few industries. Most of its non-governmental economy is based in resources: oil and gas, mining, and commercial fishing. As the federal bureaucracy grows and with it, the number of regulations on these industries, the ability for Alaska to move toward less federal dependency is reduced even further.

If Alaska is ever to take its rightful place as a strong and independent state, it must be freed from the constraints of federal overreach, and from the lures of federal funding. It must be allowed to develop and manage the land and resources within its borders so that it can create the revenue needed to support its residents. Only then will Alaskans be truly free to govern themselves.

Bethany Marcum has made Alaska her home for over 20 years. She currently works as Executive Director of the Alaska Policy Forum. She also serves as a citizen airman in the Alaska Air National Guard. She worked as legislative staff for State Senator Mike Dunleavy from 2013 to 2017. She is currently the Alaska Republican Party Region V Representative and has held a variety of other positions at the district and state level. She is a former president, long-time board member and life member of the Alaska Chapter of Safari Club International and is a life member of the NRA. She serves in her church with the children’s ministry and is a volunteer “big” with Big Brother Big Sisters of Alaska. She and her husband Conley enjoy hunting together.

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Guest Essayist: Tony Williams

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The state and constitution of Kansas was born amid arguably the most contentious controversy than any other state. The 1850s witnessed fierce national debates over slavery and its expansion westward with such key events as the Compromise of 1850, the furor over the Fugitive Slave Act and slavecatching, the Dred Scott (1857) decision, the Lincoln-Douglas debates, and the Harpers Ferry raid. These and the violent and bloody birth of Kansas helped spark the descent into the destructive Civil War.

The Kansas controversy originated in the Mexican War and the peace treaty ceding an immense tract of land to the United States in the West. Partisan and sectional arguments tore at the nation’s political system as proposals such as the Wilmot Proviso offering to ban slavery in all the territory acquired from Mexico. Finally, the congressional statesmen engineered a compromise in 1850 to save the republic which included “popular sovereignty” in New Mexico and Utah, meaning that the territorial legislatures could allow slavery though no one expected slavery to take root in those areas.

In 1853 and 1854, Stephen Douglas of Illinois engineered the Kansas-Nebraska bill. Settlers in search of good agricultural land had moved to the area, and Douglas supported a transcontinental railroad running through that part of the country. Both required the area to be organized into a territory for statehood. He was agnostic on the morality of slavery and wanted to leave it up to the territorial legislatures according to “popular sovereignty” which explicitly contradicted the Missouri Compromise of 1820 for the territory.

The Congress narrowly passed the bill into law on May 30, 1854. The sectional breach in the Democratic Party damaged it for decades, while the sectional divide within the Whig Party was fatal, paving the way for the birth of the Republican Party. More immediately, abolitionist New York Senator William Seward asserted: “I accept it in behalf of the cause of freedom. We will engage in competition for the virgin soil of Kansas, and God give victory to the side which is stronger in numbers as it is in right.” Southern Democrat Senator David Atchison of Missouri agreed that, “We are playing for a majority stake….The game must be played boldly.”

Northerners and southerners rushed into Kansas to make it a free or slave state respectively. Pro-slavery southerners won the first round as Missourian “border ruffians” crossed into Kansas, cast thousands of illegal ballots, and elected a pro-slavery territorial legislature in Lecompton. It legalized slavery and passed a harsh slave code. President Franklin Pierce and the Democratic Senate endorsed this government. Meanwhile, the House of Representatives endorsed a rival free-state government that was established in Lawrence, called for a constitutional convention for the territory, and adopted a free constitution in Topeka in 1855.

Violence erupted in the territory. Radical abolitionist John Brown and his band murdered five pro-slavery southerners in cold blood. Southerners sacked and burned Lawrence. Other deadly incidents provoked the nickname “Bleeding Kansas” to describe the volatile situation. The violence in Kansas spread to Congress during a debate over the issue as South Carolina Representative Preston Brooks caned Massachusetts Senator Charles Sumner nearly to death.

In 1857, the Lecompton legislature called for a state constitutional convention that wrote a pro-slavery document. Both sides boycotted the other side’s referendum on the Lecompton constitution with pro-slavery voters supporting it in late 1857 and free-state voters opposed.

In 1858, the U.S. Senate voted for the Lecompton Constitution, but the House defeated it replete with an indecorous fistfight. The constitution was sent back to Kansas voters who rejected it, leaving the state’s status in limbo. At the same time, yet another constitution, the free-state Leavenworth Constitution, provided for the natural rights of African Americans but was also rejected by the Congress.

The following year, Kansans adopted the Wyandotte Constitution, which was approved by Congress in 1860 as the South seceded. Congress finally admitted Kansas as a free state and banned slavery on January 29, 1861. It was the 34th state in the Union. This constitution opened with a preamble asserting the significance of civil and religious liberty: “We, the people of Kansas, grateful to Almighty God for our civil and religious privileges, in order to insure the full enjoyment of our rights as American citizens, do ordain and establish the Constitution of the State of Kansas.” The constitution remains the constitution of Kansas though it has been amended since ratification including the addition of women’s suffrage.

The Kansas constitution was born in one of the most tumultuous periods of American history related to the causes of the Civil War. Nevertheless, it endorsed the maxims of a free society and was part of the confirmation of the principles of the Founding that occurred with the Civil War and ending of slavery in the United States.

Tony Williams is a Senior Fellow for the Bill of Rights Institute and a Fellow for Constituting America. He is the author of six books including Washington and Hamilton: The Alliance that Forged America.

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Guest Essayist: Will Morrisey

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Such radically changed circumstances, which would lead to the world wars of the next century, presented American strategists with a set of problems noticeably different from those seen by Washington and his successors. Would the strengthening empires block American trade? Would they again threaten American shores, as they had not done since 1812? Further, having fought a devastating civil war, we were less likely than ever to invite the prospect of another war on our own territory—especially given the increasingly devastating power of modern weapon wielded by the well-organized and trained mass armies raised by modern states. We needed to re-think the question of strategic depth, a question we thought we’d answered by turning the middle part of North America into an empire of liberty. And we also needed to re-think our policies regarding international commerce. All without eradicating the constitutionally legitimate powers of the state governments.

American strategists proposed several policy choices. The first, advocated by German immigrant and old Republican Party ally of Abraham Lincoln, Carl Schurz, was simply to continue Washington’s policy: to eschew not only empire beyond our own continent (“overseas empire,” as he called it) but even to eschew any major strengthening of the military—this, on the traditional grounds that big military establishments threaten republican regimes. By far the most distinguished American statesman to advocate this policy in the next century was Herbert Hoover, whose “magnum opus” (as he called it), Freedom Betrayed, lays out an argument for staying out of the Second World War, and for what critics called ‘isolationism’ generally. Whatever one thinks of this as a realistic foreign policy for the modern world, it would surely have kept American federalism intact.

The second, opposite, policy was advocated by the young Indiana Republican Senator Albert J. Beveridge, who called for a vast imperial project based upon the alleged superiority of the white race, a notion itself based upon the ‘race science’ that formed part of early Progressivism. The most famous of Beveridge’s speeches remains “The March of the Flag,” delivered at a Republican Party convention in Indiana. In it, Beveridge called for American conquest of the rest of the Americas and their incorporation into the United States—not, to be sure, as equal states, but as colonial territories. At the time, theories of racial superiority were very much a part of the Progressive movement, and Beveridge might be described as the most vocal representative of the militarist wing of Progressivism, which ranged from the militarism of Beveridge to the pacifism of Jane Addams. This policy would have ended the American practice of considering newly-acquired territories as future states, instead turning the New World into a facsimile of European empires.

It took President Theodore Roosevelt to find a more realistic solution to the problem, the one that has prevailed for more than a century. Theodore Roosevelt advocated the use of a greatly-expanded navy, which he eventually succeeded in obtaining, and peacetime military conscription for the army, which he hinted at but never formally proposed. These forces, but especially the navy would be used not so much for imperial expansion but for obtaining naval bases throughout the world, usually but not always with the consent of foreign governments. These bases would counterbalance the much more expensive (and, as it turned out, untenable) imperialism of the Europeans. While happy to seize Cuba and the Philippines from the Spanish, he had no interest in retaining them, but he very much liked the idea of establishing naval bases at Guantanamo and Subic Bay. As for permanent acquisitions, he intended to hold on to Hawaii and Puerto Rico as outposts complicating foreign naval attack on the Pacific and Atlantic coasts.

To reinforce America’s opposition to European imperialism in the New World, and to answer Beveridge, Roosevelt also propounded his well-known “Corollary” to the Monroe Doctrine, stipulating an American right to intervene in Latin American countries if they fell down on their debt payments to European nations. Such refusal to repay loans, if it became “chronic” (as Theodore Roosevelt put it), would invite European military intervention into the Western Hemisphere—exactly the thing the original Monroe Doctrine was intended to discourage. This policy soon provoked anger from the people it was intended to protect, and President Franklin Roosevelt replaced it with his “Good Neighbor” policy in the 1930s.

From this perspective, Theodore Roosevelt’s foreign policy becomes quite coherent: Drive the weakened Spanish imperialists out of the Caribbean and the Philippines while blocking other empires (especially the Brits and the Germans) from seizing them; then spur the peoples of the newly-acquired countries to govern themselves. This meant recurring to the old American policy of regime change (first used by the Washington Administration in the southeastern states in its dealings with the Cherokee and other nations in that area), while obviating the need to (quite implausibly) make them into U.S. states and avoiding their (un-American) use as permanent colonies of our own. Add the Panama Canal, linking the Atlantic and Pacific oceans for both trading and military purposes, and you see that Theodore Roosevelt aimed at recovering America’s strategic depth under the circumstances caused by the new technologies of war.

Such a policy held out the prospect of retaining American federalism while avoiding ‘containment’ strategies Great Britain and other regimes, then and in the future, would deploy against us.  American federalism was compromised in any event, by Presidents Wilson, FDR, Lyndon Johnson and their allies, but this was done for domestic reasons, although sometimes under the cover of the quite different policy of liberal internationalism, which looks forward to the weakening not only of American federalism but of American sovereignty altogether.

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; 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.

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Guest Essayist: Will Morrisey

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For one hundred years—roughly between the ratification of the United States Constitution and 1890—the “extended republic” James Madison described in The Federalist did indeed extend, from sea to shining sea. As Americans settled each new swath of territory they sought and received recognition as states of the Union, equal to all states that preceded them, including the original thirteen. This great period of American empire-building far exceeded anything done subsequently (for example, the acquisition of territories from Spain in the late 1890s) and proved far more lasting than the ‘scramble for empire’ undertaken by the European states during that time. America became what Jefferson wanted it to be: an “empire of liberty,” that is, a union of free and equal states, with republican regimes securing the natural rights of all its citizens in principle and of most if not all in practice.

The question of the exact terms and conditions of American federalism, especially the status of the states within it, was answered in principle by Abraham Lincoln in his speeches and in practice by the Union armies in the Civil War. The pseudo-republican oligarchies of the states that formed the Confederacy were defeated, although they reconstituted themselves to a substantial degree, in different form, after Reconstruction ended. States’ rights could no longer serve as a carapace for slavery, although it would so serve for legal racial segregation for much of the next century. But the Union had survived.

The year 1890 saw another, less stark but still unsettling crisis. For the past century, the migrations of Americans to the West had relieved the older states of the need to address the worst economic and social tensions modern industrial societies had faced. Now, however, the United States effectively had become an island, bordered by oceans on each side, the Caribbean in the south, and to some extent the Great Lakes in the north. It was a giant island, but an island nonetheless. With immigrants still coming in from Europe, with industrialism and urbanization intensifying in the East and Midwest, what would become of the country? Could the regime of commercial republicanism sustain itself against populist and socialist ideologues who sought to exploit these pressures? Could federalism withstand pressures to ‘nationalize’ everything—that is, bring it under the rule of the central government to the diminution of the state governments?

The historian Frederick Jackson Turner framed perhaps the most high-level expression of this anxiety. In his 1893 paper presented to the American Historical Association’s annual meeting in Chicago, “The Significance of the Frontier in American History,” Turner argued that it was the settlement of the frontier, fostering the character of Americans as independent, self-governing yeoman farmers, which had (to coin a phrase) made America great. Not so much Christianity, not the principles of the Declaration of Independence, not the Constitution, and surely not any biologically-based racial superiority over the American Indians, but the frontier itself, the virtues the cultivators cultivated along with their crops, gave Americans the moral fiber needed to make them a strong, free, and united people. With the closing of the frontier, the elimination of the conditions of this character-building way of life, would Americans not succumb to moral decline, and ultimately lose both their empire and their republicanism? The ‘Turner thesis,’ as it came to be called, galvanized academic and even journalistic discussion for decades thereafter.

Not only professors and pundits saw this problem, however. As it happened, an ambitious young politician named Theodore Roosevelt had already published two volumes of his book The Winning of the West, in the years immediately preceding Turner’s study. The young civil service reformer from New York City, who had ‘gone West’ himself, to the Dakotas, after his beloved wife’s death in 1884, also argued for the importance of the frontier in forming the American ethos through its rugged way of life. Roosevelt understood the West not so much as a land for peaceful if rugged farming as an arena for warfare pitting semi-civilized Americans against uncivilized Indians. The West built not only the steady, yeoman virtues of Jeffersonian agrarianism but also and above all the martial virtues of George Washington. Whereas Europeans (so long as they stayed in Europe) could only exercise those virtues against other civilized nations, with all the moral hazards attendant—most spectacularly—in Napoleonic despotism; and whereas if Europeans abandoned such ambitions, as proposed in projects for “perpetual peace” such as that proposed by the philosopher Immanuel Kant, only to risk a softening of spirit, moral decay, Americans had solved the problem by advancing civilization without colonization—that is, without keeping newly-won territories in political subservience to the ‘Mother Country.’

Whether one argued for Turner’s yeomanry or Roosevelt’s militias and posses, or some combination of them, as the inspiriting conditions of American courage and self-government, the dilemma of the 1890s remained the same: How will Americans perpetuate their republican regime and empire, now that the frontier has closed?

Roosevelt also saw another danger, outlined in the 1890s by the British naval strategist, Alfred Thayer Mahan. As far back as 1787, in The Federalist, Alexander Hamilton had argued that oceans are as much highways as they are barriers; as a Caribbean-born transplant to New York, he needed no book to teach him that. By 1890, technology had made this obvious to everyone, as steam-powered vessels having replaced the old sailing ships and telegraphs making ‘messaging’ nearly instantaneous. These improved means of transportation and of communications had strengthened European empires; by Queen Victoria’s Diamond Jubilee in 1897, Britannia not only ruled the waves but about one-fourth of the land on earth and about one-fifth of its population, while France, Germany, Russia, Austria-Hungary, Turkey, and even Belgium had substantial holdings as well.

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; 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.

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To date, fifty states have been admitted to the United States, with the last one, Hawaii, having been admitted on August 21, 1959.  However, in addition to the states, the United States has a number of major territories, including American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands.

The Establishment of a United States Territory and Its Governance

As many of the essays after the first states’ ratification of the Constitution have described, the way to statehood has typically been through first being a territory or part of a territory, and then seeking statehood.  A territory is established by the passage of an organic act to organize it. Many have been enacted by Congress over the nation’s history, with the first being the Northwest Ordinance, passed in 1787 by the Continental Congress.

Current Major Territories and History

Currently, the United States has five major U.S. territories: American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. Each such territory is partially self-governing that exists under the authority of the U.S. government.

Pursuant to the Organic Act of 1900, or Foraker Act, Puerto Rico became a territory of the United States. Puerto Rico became a possession pursuant to the Spanish-American War.  It has been a territory since that act passed.  It has often been mentioned as a new state, but no serious effort has been made by Congress.

Pursuant to the Organic Act of the Virgin Islands of the United States of 1936, the United Stated added the U.S. Virgin Islands to its territories.  In 1950, Guam became a territory pursuant to the Guam Organic Act of 1950.  In 1954, the Revised Organic Act of the Virgin Islands replaced the original 1936 act.

The Northern Mariana Islands have been administered by the United States since Japan surrendered in World War II, pursuant to Security Council Resolution 21.  The people of the Islands have by referendum voted to join with Guam, but in 1969, Guam rejected the proposal. American Samoa has no organic act, and as such is considered unorganized.  Despite that, American Samoa has remained connected to the United States. In addition to the five major territories, the United States has a number of other territories that are uninhabited.

Limitations of Territories

Territories are not states and do not have full recognition that states enjoy.  Notwithstanding not being states, each territory can send a delegate to the House of Representatives. With the exception of American Samoa, whose residents are U.S. nationals, those in the other four territories are U.S. citizens. Citizens of the territories can vote in primary elections for president, but they cannot vote in the general elections for president.

In 2016, the Supreme Court of the United States held, in Puerto Rico v. Sanchez Valle, 579 U.S. ___ (2016), that territories do not have sovereignty.  In the aftermath of Hurricane Maria, the Puerto Rico governor and others argued that the territories were powerless and had little understanding or support.  As noted, they send delegates to the House, but have no vote, and cannot vote in the general election for president, despite being citizens in four of the five territories.  While they have some self-governance, they do not have sovereignty, and the reality is that there are significant limitations when a land is a territory rather than a state.

Conclusion

In our nation’s history, many of the states that today constitute the fifty were originally territories or parts of larger territories.  Thirty-one territories or parts have eventually become states.  For example, from the Missouri Territory, we have Missouri, and then from the unorganized territory once Missouri became a state, we later had Iowa, Nebraska, South Dakota and North Dakota, most of Kansas, Wyoming, and Montana, and parts of Colorado and Minnesota become states.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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Photo Credit: Everett Historical

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Admitted to Union July 10, 1890, Wyoming became the forty-fourth state to ratify the U.S. Constitution. Known as “The Equality State,” it currently uses the Wyoming State Constitution adopted in 1889.  While amended many times, it is the only state constitution Wyoming has had in its history, last amended in 2008.

Becoming a State

In 1869, the Wyoming Territory organized after Congress passed an act creating the territory in July 1868, with the territory seeking statehood from the beginning. Despite statehood being more than thirty years in the territory’s future, Wyoming’s first territorial governor, John A. Campbell, signed the “Female Suffrage” in 1869 and Wyoming became the first territory, then when admitted as a state, to grant voting rights to women.

In addition to that act, Wyoming has been a leader in equal rights from its organization as a territory.  Women served on juries beginning in 1870, the first female court bailiff was in Wyoming in 1870, and the first female governor in the nation, Nellie Tayloe Ross, was sworn into office in January 1925.

In 1888, the Territorial Assembly petitioned Congress for statehood, but that effort was not successful.  Despite not being approved for statehood in 1888, Wyoming Territory Governor Francis E. Warren and other territorial leadership decided to hold an election for delegates to a constitutional convention.  On September 30, 1889, the Constitutional Convention was held and a state constitution was drafted that was submitted to voters. A short time later, on November 5,1889, the constitution was approved by an overwhelming majority of Wyoming voters, 6,272 to 1,923.

With a new constitution, the Wyoming Territory pushed for statehood again, and after President Benjamin Harrison signed Wyoming’s statehood bill, Wyoming became the 44th state on July 10,1890.

The Wyoming Constitution

The state has been known as “The Equality State” from its early days, with the Suffrage Act passed and also the state constitution, which provides at Article 1, Declaration of Rights, Sections 2 and 3 the strong belief in equality, stating:

Sec. 2. Equality of all. In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.

Sec. 3. Equal political rights. Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than individual incompetency, or unworthiness duly ascertained by a court of competent jurisdiction.

Forty-six delegates assembled in Cheyenne, Wyoming, in September 1889, and on September 30, 1889, the delegates signed the constitution.  Although amended on numerous occasions (the changes can be seen in the document at https://soswy.state.wy.us/Forms/Publications/09WYConstitution.pdf), the bulk of the Wyoming Constitution has remained unchanged since its origins almost 130 years ago.

The Wyoming Constitution has other rights that are consistent with the United States Constitution Bill of Rights, and its right to bear arms provision makes it clear it is a right to defend oneself and the state, providing:

Sec. 24. Right to bear arms. The right of citizens to bear arms in defense of themselves and of the state shall not be denied.

In addition to the extensive Declaration of Rights, the Wyoming Constitution is very detailed in terms of limitations on the state’s public indebtedness.

Conclusion

Wyoming became the 44th state to join the United States, but in equal rights, stands out as the first, earning its nickname as “The Equality State.”  Wyoming is also known as the “Cowboy State” in homage to its use of the bucking bronco as its symbol.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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Guest Essayist: Joerg Knipprath

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When the Constitution was submitted to the American people in conventions in the several states, many objected that the lack of a bill of rights made the general government a dangerous tool of oppression. They looked to English antecedents, such as the English Bill of Rights of 1689, their historical colonial charters, many of which had contained express reservations of rights, and their existing state constitutions, many of which–but not all–had bills of rights. Some supporters of the Constitution, such as Alexander Hamilton, considered bills of rights empty verbiage at best, and dangerous implications of general governmental powers at worst. Moreover, Hamilton pointed out–in some tension with his previous argument– that the Constitution already contained limitations on the general government, for example, in the important provision in Article I, Section 9, against ex post facto laws. However, the need to get favorable outcomes in some closely-divided conventions persuaded the Constitution’s supporters to agree to promote a bill of rights once the new government was successfully established.

The First Congress set to that task. The initial set of amendments drafted by Representative James Madison were distilled from those submitted by the various state ratifying conventions, with the author declaring to Congress “I shall not propose a single alteration but is likely to meet the concurrence required by the constitution.” While most of those changes dealt with the powers of the general government or with limits to be imposed on that body, one group did not. Hamilton had also criticized the fact that the New York constitution, like that of some other states, lacked an explicit bill of rights. If anything, he noted, states needed bills of rights more than the federal government did, because they were governments of general and inherent legislative power, while the federal government was one of limited and delegated powers. For the former, then, any restriction on its powers had to be express.

Madison proposed to amend Article I, Section 10, of the Constitution (which dealt with restrictions on state governments), to add, “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” The House Committee of Eleven, to whom Madison’s proposal was referred, modified his language somewhat and added a protection of the freedom of speech. The House of Representatives made several changes. First, it changed the basic approach. Rather than revise the text of the original Constitution by interlineation of these changes, the original text would remain, and the changes would be separated and formally styled “Amendments.” Second, it rephrased the proposal as “ARTICLE the FOURTEENTH,” which declared, “No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.”

Two weeks later, the Senate passed its own version, which omitted all references to limitations on state governments. The Senate’s version of the proposed amendments was, in essence, what was finally submitted to the states for approval. It is not entirely clear why the Senate dropped the restriction on state governments, though their selection by the state legislatures may have made Senators reluctant to impose express limits on those bodies. As a result, the Bill of Rights (and the 27th Amendment, which was proposed then, but failed to get the requisite state support until 1992) is concerned entirely with powers of the general government and with limits thereon.

In 1833, Chief Justice John Marshall, in Barron v. Mayor of Baltimore, confirmed that neither the Takings Clause of the Fifth Amendment at issue there, nor any other provision of the Bill of Rights, applied to the states. Referring to the constitutional settlement of 1789 that resulted in the adoption of the Bill of Rights, Marshall noted that the amendments “demanded security against the apprehended encroachments of the general government–not against those of the local governments.” There matters remained, formally, for nearly a century. Any restrictions on state governments, other than those in Article I, Section 10, had to come from the respective states’ constitutions.

In a society as locally-focused as Jefferson’s “Yeoman Republic” of artisans and farmers, such an arrangement made sense. But with the growing industrialization and its accompanying commercial intercourse shaping stronger regional and–more gradually, national–bonds, a new constitutional settlement was needed. The social dislocations caused by the “Industrial Revolution” were increasingly the targets of state law. Direct federal regulation of peacetime commerce did not occur until near the end of the 19th century with the Interstate Commerce Act, directed at the railroads, and the Sherman Antitrust Act, directed at John D. Rockefeller’s Standard Oil Trust and similar “malefactors of wealth.” The new entrepreneurial class that opposed state interference in their economic activities was frustrated by the variability of protections offered by the state constitutions and, if they were interstate companies, by the inconvenience and potential contradictions of state-by-state litigation to protect their interests.

There was the germ of another constitutional approach during this time, in the form of Corfield v. Coryell, a case in 1823 from the federal circuit court. Supreme Court Justice Bushrod Washington (George Washington’s nephew), as circuit judge, declared that the Privileges and Immunities Clause of Article IV, Section 2, protected a citizen of one state travelling to another state against discriminatory legislation by the latter, at least as to the exercise of certain fundamental rights. The “P & I Clause” had its antecedent in the Articles of Confederation. Washington wrote, “We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.” Washington’s opinion reflected the “higher law” reasoning, based on theories of natural law, natural rights, and broad principles of freedom reflected in the social contract, to which the courts of that time had frequent recourse to limit the actions of state governments.

The drawback of Corfield was that Washington correctly held that the P & I Clause only applied to state laws that targeted out-of-state visitors. It was an anti-discrimination protection, not a guarantee of basic rights to anyone. Since state laws typically restricted in-state businesses as well as interstate enterprises, Corfield was of limited use initially.

Further change came through the adoption of the Fourteenth Amendment in 1868. That amendment contains protections against laws by state and local governments that infringe the privileges or immunities of citizens, that deprive persons of life, liberty or property without due process of law or that deny a person the equal protection of the law. The first Supreme Court decision to address the application of the Fourteenth Amendment to safeguard property and economic liberty against state regulation came in the Slaughterhouse Cases in 1873. An association of butchers in New Orleans challenged a state-created slaughterhouse monopoly. The Court rejected their claims and held that the privileges and immunities clause only protected rights of national citizenship, that is, rights that arise directly from a citizen’s connection to the federal government, such as the right of access to federal instrumentalities, and certain rights protected in the Constitution itself, such as the right of assembly and petition. As to due process, that clause only protected rights of fair trial. The equal protection clause only protected Blacks against racially discriminatory state laws.

The dissent in the Slaughterhouse Cases envisioned much greater protections. Using remarks made during the congressional debates on the amendment, Justice Stephen Field claimed that the privileges and immunities protected were those listed in the Bill of Rights, as well as those that would be within Justice Washington’s expansive description in Corfield. This would include the right to pursue any lawful trade or profession without the restriction posed by a state-licensed monopoly. Justice Joseph Bradley proposed an alternate theory, that the Louisiana law’s substance was an unconstitutional deprivation of property and liberty without due process.

The Slaughterhouse justices generally agreed that the Fourteenth Amendment applied some or all of the Bill of Rights to the states. Moreover, the dissenters argued that broad conceptions of privileges and immunities, and of property and liberty also restricted the states. Both approaches subsequently were used by the Supreme Court to overturn state laws. While Justice Field’s broad reading of privileges and immunities did not catch on, Justice Bradley’s views became the majority’s in Allgeyer v. Louisiana in 1897 and Lochner v. New York in 1905. There, the Court overturned economic regulations as a violation of the “liberty of contract” protected under the Due Process Clause. This doctrine of “substantive due process” is no longer used to invalidate federal laws (under the Fifth Amendment’s Due Process Clause) or state laws (under the Fourteenth Amendment’s) that regulate economic liberty, but has been used to strike down laws that violate various ill-defined aspects of the “right of privacy,” including long-standing laws that defined traditional marriage, prohibited certain forms of sexual conduct, and restricted access to contraception and abortion.

In addition to such “unenumerated” rights, the Supreme Court gradually applied the specific guarantees of the Bill of Rights to the states. Scholars debate about which case first “incorporated” specific provisions of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment. At the turn of the 20th Century, the Supreme Court began to acknowledge that some rights protected by that clause were similar to those in the Bill of Rights. In any event, beginning in the 1930s, the Court over the next three decades clearly moved to incorporate, first, the Free Speech and Free Press Clauses and, second, various criminal procedure protections.

Three factions developed among the Supreme Court justices. One group, led by Justice Benjamin Cardozo, argued that only certain “preferred freedoms” within the Bill of Rights are incorporated into the Due Process Clause. Under this process of “selective incorporation,” only those freedoms that are “implicit in the concept of ordered liberty” would be applied against the states in the same manner that they applied to the federal government. Writing in Palko v. Connecticut in 1938, Cardozo defined these as the “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,” a vague and flexible formulation reminiscent of that by Bushrod Washington in Corfield a century earlier.

Justice Felix Frankfurter leaned towards Cardozo’s approach, but argued that the federal government and the states had different roles in our federal system. Particularly in the traditional state law domain of criminal law and procedure, the interests of the states must be balanced against the right at issue. As a result, the scope of the Bill of Rights protections when incorporated against the states should be similar to, but not necessarily identical with, those protections when they directly limit the federal government.

Justice Hugo Black urged “wholesale incorporation” of all of the first eight amendments of the Constitution. Black relied on his reading of the congressional debates over the Fourteenth Amendment, and on what he saw as the main purpose of that Amendment. The Court rejected Black’s approach as unsupported by the historical record. However, even though Black lost that battle, he effectively won the war. On recognition of the increased mobility and homogenization of our population across the country, the Court has come to incorporate almost all provisions of the first eight amendments. Only the Third, Seventh, and small parts of the Fifth and Eighth Amendments so far have avoided the process of the nationalizing of rights through their incorporation into the Due Process Clause of the Fourteenth Amendment.

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

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Guest Essayist: Gary Porter

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How the Bill of Rights Was Aimed at the Federal Government Because States Had Their Own Bills of Rights

James Madison was suspicious of a Declaration of Rights at the national level. In a letter to his friend Thomas Jefferson, then serving as Minister to France, Madison confessed that his “own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration.”[1] He was particularly concerned “that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.”[2] But Madison had seen, first-hand, the obstinacy of the states under the Articles of Confederation towards the rights of their citizens.  In his “Vices of the Political System of the United States,” Madison decried the “Injustice of the laws of States.” While the “multiplicity” and “mutability” of state laws showed a “want of wisdom,” their “injustice” was “still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.”[3]

Madison told Jefferson that in their home state he had “seen the bill of rights violated in every instance where it [was] opposed to a popular current.” His precious “rights of conscience” were particularly vulnerable.  Madison was livid over the jailing of Baptist preachers in the neighboring Culpeper County, calling it “that diabolical Hell conceived principle of persecution” in a letter to his College of New Jersey classmate William Bradford.

In 1776, Madison had the opportunity to strike a blow for liberty of conscience by successfully arguing, as Virginia’s Declaration of Rights was being drafted, that the principle of “toleration” towards other Christian denominations, even if it was fullest toleration, was simply not enough.  Citizens would not enjoy complete liberty of conscience until “all men are equally entitled to the free exercise of religion.”

It comes as no surprise then to see Madison try once again to protect liberty of conscience in 1789 when drafting his proposed amendments to the new Constitution. One proposed article read: “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”  In the ensuing floor debate it was argued that this amendment was improper; the Constitution gave the federal government no authority to alter the state constitutions, and such an amendment would certainly amount to such an alteration, at least in the state constitutions where a right of conscience was not already secured.  Madison, however, viewed this as the most important amendment in the whole list, his reason being, “If there were any reason to restrain the Government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against State Governments.” Madison was eventually outvoted and the “infringement” on the states was “left on the cutting room floor.”

The Constitution already contained some specific words concerning state powers; Article 1 Section 10 enumerated several tightly targeted prohibitions, and the 10th Amendment made clear that any power not specifically granted to Congress was reserved to the states and/or the people.

Congressmen in the summer of 1789 were well aware that the constitution of nearly every state predated the new U.S. Constitution and that they had been working well.  Almost all of them contained either Declarations of Rights or specific protections in the body of the constitution; some of these protections were more elaborate even than those which ended up in the U.S. Bill of Rights.[4]

That’s the way things would stand for the next 136 years; but I’m getting ahead of myself.

In the early 1830s, the city of Baltimore, Maryland, began a public works project that required the modification of several streams that emptied into Baltimore Harbor. Construction resulted in large amounts of sediment entering the streams, which flowed into the harbor near a wharf owned and operated by one John Barron.  The sediment eventually reached the point where it became nearly impossible for ships to approach Mr. Barron’s wharf and his business dropped precipitously. Barron sued the City of Baltimore for his financial loss, arguing that the city’s action “took” his property without the due process promised him by the Fifth Amendment. He was awarded $4,500 in damages by the trial court, but a state appellate court reversed the decision.  Barron appealed to the Supreme Court, which ruled[5] that the Fifth Amendment’s guarantee of just compensation when private property is taken for public use is a restriction on the federal government alone. The opinion in Barron v. Baltimore by Chief Justice John Marshall held that the Constitution’s first ten amendments[6]contain no expression indicating an intention to apply them to the State governments.”

This made perfect sense.  The first five words of what became known as the Bill of Rights: “Congress shall make no law…” make clear the target of the amendments – Congress (and by implication, the rest of the federal government), not the states.

On February 26, 1866, in debate over what became the 14th Amendment, the amendment’s principal author, Rep. John Bingham, was asked whether he intended the amendment to apply, as some perceived, “only to the eleven states lately in rebellion.”  Bingham replied: “It is to apply to other States also that have in their constitutions and laws to-day provisions in direct violation of every principle of our Constitution.”[7]

The following day, Rep. Bingham rose to elaborate upon the preceding day’s debate.

“Excuse me. Mr. Speaker, we have had some most extraordinary arguments against the adoption of the proposed amendment…

“Mr. Speaker, I speak in behalf of this amendment in no party spirit, in no spirit of resentment toward any State or the people of any State, in no spirit of innovation, but for the sake of a violated Constitution and a wronged and wounded country whose heart is now smitten with a strange, great sorrow. I urge the amendment for the enforcement of these essential provisions of your Constitution, divine in their justice, sublime in their humanity, which declare that all men are equal in the rights of life and liberty before the majesty of American law.

“Representatives, to you I appeal, that hereafter, by your act and the approval of the loyal people of this country, every man in every State of the Union, in accordance with the written words of your Constitution, may, by the national law, be secured in the equal protection of his personal rights. Your Constitution provides that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless, no matter how ignorant, shall be deprived of life or liberty or property without due process of law—law in its highest sense, that law which is the perfection of human reason, and which is impartial, equal, exact justice; that justice which requires that every man shall have his right: that justice which is the highest duty of nations as it is the imperishable attribute of the God of nations.”

Representative Robert Hale of New York rose to ask whether he might be allowed “to ask a single question pertinent to this subject?” Bingham accepted.

(Hale) “I desire … to ask [Mr. Bingham], as an able constitutional lawyer, which he has proved himself to be, whether in his opinion this proposed amendment to the Constitution does not confer upon Congress a general power of legislation for the purpose of securing to all persons in the several States protection of life, liberty, and property, subject only to the qualification that that protection shall be equal…”

(Bingham) “It certainly does this: it confers upon Congress power to see to it that the protection given by the laws of the United States shall be equal in respect to life and liberty and property to all persons.”

(Hale) “Then will the gentleman point me to that clause or part of this resolution which contains the doctrine he here announces?”

(Bingham) “The words ‘equal protection’ contain it, and nothing else.”

It would take the Supreme Court 39 years to come around to Bingham’s thinking on the 14th Amendment.

Eight years after the 14th Amendment was ratified, in fact, in United States v. Cruikshank, the Court affirmed, once again, that the Bill of Rights did not apply to the states.  In Cruikshank, it meant that the First Amendment’s right to assembly “was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone.”[8]

We skip forward to July 1919. Benjamin Gitlow, a member of the Socialist Party of America, who had served in the New York State Assembly, published a document called “Left Wing Manifesto” in The Revolutionary Age, a newspaper for which he also served as business manager.  The State of New York charged Gitlow with criminal anarchy under New York’s Criminal Anarchy Law of 1902.

At trial, Gitlow insisted that his “Manifesto” consisted of historical analysis and did not advocate anarchy. Nevertheless, he was convicted and sentenced to five to ten years in prison.  He appealed, and the case eventually reached the Supreme Court.

The question presented to the court was: “Does the First Amendment prevent a state from punishing political speech that directly advocates the government’s violent overthrow?” The Supreme Court said “No,” finding that “Freedom of speech and of the press, as secured by the Constitution, is not an absolute right to speak or publish without responsibility whatever one may choose or an immunity for every possible use of language.”  They upheld Gitlow’s conviction with the explanation that the government may suppress or punish speech that directly advocates the unlawful overthrow of the government, but the Court took the unprecedented step in announcing that, for the purposes of the case, that freedom of speech and of the press are among the personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.[9] (Emphasis added) This became what is now called the “Incorporation Doctrine.”

After Gitlow, the Court began the tedious process of clause by clause incorporation as specific cases allowed. Not every clause of the Bill of Rights was deemed worthy of incorporation; in Palko v. Connecticut, the Court ruled that only those rights that were “of the very essence of a scheme of ordered liberty” should be incorporated.[10]  We should note that the phrase “scheme of ordered liberty” appears nowhere in the Constitution. To mold a court-invented doctrine so that it aligns with a syrupy but entirely unconstitutional phrase would seem the height of judicial hubris.

Some notable exceptions to incorporation thus far include the entire Third Amendment (outside the jurisdiction of the Second Circuit Court of Appeals), indictment of a Grand Jury (Fifth Amendment) and the right to a jury selected from residents of the state and district where the crime occurred (Sixth Amendment).

A list of those clauses incorporated can be found on Wikipedia.[11] The most recent addition to the list is the “Excessive fines” clause of the Eighth Amendment in February 2019 (in Timbs v. Indiana)

The incorporation Doctrine is not without its critics,[12] this writer being one of them.  While it may be appropriate for the states to be held responsible for protecting the rights specified in the Bill of Rights, having the Supreme Court invent the doctrine of incorporation without input from We the People is blatantly unconstitutional.  The American people should have been allowed to conduct a national conversation over the idea, an appropriate Constitutional amendment should have been proposed and, if ratified, the feat would have been accomplished, constitutionally.  Instead, the court, never intended by the Framers to be representative of the people, took it upon itself to act.  This is certainly in line with the view of Chief Justice Charles Evan Hughes that “[w]e are under a Constitution, but the Constitution is what the judges say it is….”[13] The acquiescence of the American people since 1925 has been perceived as their acceptance.

Bryan Keith Morris, in The Incorporation Doctrine: A Legal and Historical Fallacy, takes a textualist instead of original intent position (as taken by the Court) in arguing that the Incorporation Doctrine should be discarded.  John P. Frank obliterates the originalist position in “The Original Understanding of “Equal Protection of the Laws.[14]  Both essays should be read before someone comes to a conclusion on the matter.

Today, Associate Justice Clarence Thomas and others maintain that the privileges and immunities clause of the Fourteenth Amendment and not the due process clause should provide the anchor for the Incorporation Doctrine. Thomas recently reiterated this view in his concurring opinion in Timbs v. Indiana.

No matter what your position of the rectitude of the Incorporation Doctrine today, it is indisputable that those who approved and ratified the Bill of Rights had no intention of infringing on the powers of the several states.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites. Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[1] James Madison to Thomas Jefferson, 17 Oct. 1788.

[2] Ibid.

[3] https://founders.archives.gov/documents/Madison/01-09-02-0187.

[4] See https://www.americanthinker.com/articles/2018/12/state_bills_of_rights_have_the_real_protections.html

[5] Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).

[6] The Constitution had 12 amendments by then.

[7] https://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/congress-debates-fourteenth-amendment-1866.

[8] https://caselaw.findlaw.com/us-supreme-court/92/542.html.

[9] https://supreme.justia.com/cases/federal/us/268/652/.

[10] https://en.wikipedia.org/wiki/Palko_v._Connecticut.

[11] https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights.

[12] https://lonang.com/wp-content/download/TheIncorporationDoctrine.pdf.

[13] Speech before the Chamber of Commerce, Elmira, New York (3 May 1907); published in Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906–1908 (1908), p. 139.

[14] https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2738&context=law_lawreview.

Guest Essayist: Andrew Langer

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The thirty-sixth state admitted to the Union was Nevada, having ratified the U.S. Constitution October 31, 1864, and currently uses the Nevada State Constitution adopted in 1864.

The relationship between Nevada and the federal government is as much a matter of the history of how Nevada became a state as it is the conditions under which it was granted statehood.  Like many western states, states whose territories were carved out of the lands gained by the United States as a result of the Treaty of Guadalupe Hidalgo of 1848.

Until that point, states entering the union retained title to “unappropriated public lands” within their boundaries.  But states entering the Union after 1848, by and large, ceded all title to these unappropriated public lands—i.e., lands that were neither privately owned, nor were they dedicated to some official public purpose—to the federal government as an incident of their becoming a state.  As a result, these states, which were also much, much larger than their eastern counterparts, came into the Union with massive amounts of federal land within their midst.

There were a number of reasons for this.  Keeping in mind that Nevada was admitted to the Union during the height of the civil war—the state was also rushed to admission because Republicans wanted to ensure President Abraham Lincoln’s re-election in 1864 (it turned out that Lincoln won handily, but the party politicians at the time wanted to make certain of it).

But the transfer of title of unappropriated public lands from the territories to the federal government upon statehood had a lesser-known (and from an academic perspective, really not understood at the time) benefit.

In his book, The Mystery of Capital, the Peruvian economist and political scientist Hernando DeSoto talks about the importance of “clearing title” to real property (i.e., land) in order to facilitate its purchase and development.  The concept is simple and straightforward:  people will invest in real property only when they have certainty that they have clear legal title to that land, and that this title will be protected under the rule of law.

In order to make certain that these newly-born states would be settled, it was essential that prospective residents be assured that the land they were settling would actually be theirs-that nobody else would lay claim to them down the road.

But part and parcel of this conversion of state territorial lands to federal ownership was a secondary agreement—that the federal government would “dispose” of these lands (with the exception of lands that would be used for governmental or educational purposes).  In Section 10 of the Enabling Act for Nevada, passed by Congress in 1864, Congress agreed that the state would be paid a percentage of the sale of all public lands, “which shall be sold.”  It was an agreement which essentially admits that Congress didn’t envision, at the time, that the federal government wouldn’t retain these lands in perpetuity.

It’s the same agreement, incidentally, that the Federal Government agreed to in essentially every enabling act after the Treaty of Guadalupe Hidalgo was ratified… and yet these states still contain tremendous federal land ownership.

The reason for this is straightforward.  For many years, these lands were remote, inaccessible, and in many cases inhospitable.  While much of it is used for ranching and timber production, it was many years before some of the more desolate public lands were seen as possibilities for mineral, petrochemical or recreational usage.  So there was no demand for many of these lands.

But as that demand began to grow, push-back against this longstanding contractual agreement to dispose of these lands began as well—especially from recreation enthusiasts, who saw no distinction between National Park lands (clearly managed for recreational use) and lands managed by the U.S. Forest Service (which, as an agency under the U.S. Department of Agriculture are managed for timber production), the Bureau of Land Management (which manages lands used by ranchers) and a host of other agencies which lease lands out for private use.

It was out of this attitude that the Federal Land Policy and Management Act of 1976 was created.  FLPMA, as it is better known, “flips” the duty to dispose on its head—and for nearly the last half-century there is instead a “duty to retain” these public lands, but the onus on localities, states, or private parties to make a heavy case for why a parcel of property ought to be disposed.

As a result, states like Nevada have huge parcels of federal land in their midst—more than 4/5 of Nevada is federally-owned.  This has huge impacts on the ability of the state government and local governments to effectively exercise their authorities.

Take Nye County, NV—Nye is the third-largest county in the United States, the size of Vermont and New Hampshire combined.  It is more than 90% federally-owned.  When the county makes land-use decisions, in many case, these decisions have to be reviewed by a host of federal agencies, by personnel thousands of miles away working within enormous bureaucracies.  At many points, there has been conflict—for instance, in the mid-1990s, a road was washed out connecting two Nye towns.  Because the road crossed US Forest Service lands, the county had to work with the USFS to try and get the road reopened since, absent the road, Nye residents would have to go, literally, hundreds of miles out of the way to get from City A to City B.

The County Commissioners felt that the USFS was dragging its feet and, in fact, the forest service was reluctant to reopen the road.  It came to a head when a frustrated county commissioner got on a county-owned bulldozer and opened up the closed road himself.

The federal government sued Nye County, and despite state law saying that the counties had some powers with regards to utilization of these lands, when the Nevada Attorney General refused to defend that law, the federal government won that lawsuit—leaving counties like Nye powerless in the face of massive government retention of public lands.

We continue to see flare-ups in the tension between local landowners and federal land management authorities.  Despite the fact that obligations exist since states like Nevada became members of the Union, existing federal law will make it hard for land management and ownership to devolve to the states.  Which means that state and local governments will still have to contend with the federal government as a massive partner in non-federal decision-making.

Andrew Langer is President of the Institute for Liberty and host of the Andrew Langer Show on WBAL NewsRadio 1090 in Baltimore.

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Guest Essayist: Anthony Sanders

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Minnesota has a proud constitutional tradition of protecting individual liberties. This short essay provides an overview of its constitutional history, and a few examples of the rights that the state constitution protects.

Northwest Ordinance

Minnesota’s constitutional roots go all the way back to before the adoption of the U.S. Constitution.

As Minnesotans will tell you, the state is the source of the Mississippi river. The land east of the river was recognized as part of the United States in 1783, after the United States won the Revolutionary War. A few years later in 1787, Congress, acting under the Articles of Confederation, drafted the Northwest Ordinance. The Ordinance included a set of requirements for new states to be formed out of the Northwest Territory, the area which today includes Minnesota east of the Mississippi, as well as Ohio, Indiana, Illinois, Michigan, and Wisconsin. It required new states to guarantee many individual liberties, including freedom of religion, freedom of navigation on public waterways, and the prohibition of slavery.

The land west of the Mississippi was not claimed by the United States until 1803 as part of the Louisiana Purchase.

Constitutional Convention

After the rest of the old Northwest Territory and some of the Louisiana Purchase had become states, it was Minnesota’s turn. The Minnesota Territory was formed by Congress in 1849. Further legislation in 1857 allowed for the formation of a state, while narrowing the territory’s size in the process (shaving off the westernmost areas, which eventually became part of both North and South Dakota).

The residents of the territory then came together to form a constitution, and planned a convention for the summer of 1857. Tensions between Democrats and members of the new Republican Party were high. It did not help that this was the year of the infamous slavery case Dred Scott v. Samford and the Supreme Court’s ruling that blacks are not citizens, and only four years before the eventual outbreak of the Civil War. Scott himself had actually resided in Minnesota while his owner was stationed at Fort Snelling, an Army outpost at the confluence of the Minnesota and Mississippi rivers.

On the first day of the constitutional convention, July 13, 1857, all elected delegates sat together to open the proceedings. And that was the only time they did so. The bad blood between the parties boiled over and the rest of the convention was really two “conventions” where Democratic and Republican delegates held parallel sessions. In these they each drafted and debated a constitution for the state, denigrating the members in the other group in the process.

Newspapers continually published drafts of a constitution that each party created as they moved along. This created a dynamic where for several weeks each “convention” could follow and copy the other. Thus, despite their differences, when the parties published their separate final drafts, it turned out that the versions were very similar. Finally, each side appointed a five-member delegation to hammer out a final copy.

The resulting constitution contained many provisions drawn from the Northwest Ordinance, including strong protections for individual liberties. As with most other state constitutions, its bill of rights protected freedom of worship, freedom of the press, property rights, and due process. It also prohibited unreasonable searches and seizures. The constitution created a House and Senate, known as a bicameral legislative system, a governor and other elected officials (including a secretary of state and auditor), an elected judiciary, a quasi-independent state university (the University of Minnesota, later sometimes called a “constitutional agency”), and a guaranteed system of public schools.

Amendments Since 1857

Unlike many other states, Minnesota has had only the one constitution in its history, although it has been amended over one hundred times, and substantially reorganized once. The numerous amendments—which are written by the legislature but have to be voted on by the citizens—are too many to list here, but the author will note a couple.

In 1881, the state adopted a ban on “special legislation,” which is legislation that concerns a particular person or class of people. The ban’s language was then amended several times over the ensuing decades. Advocates rightfully noted that the legislature was corruptly being used to grant special favors to individuals and specific corporations.

Another amendment, unique to Minnesota, was a protection on the right to farm and peddle. Adopted in 1906, it reads “[a]ny person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.” The clause has been interpreted narrowly by the state courts, but its text promises a great deal of protection to family farmers and others, such as home bakers.

Redraft in 1974

In 1974, after years of study, the legislature proposed, and the voters adopted, a large reorganization of the state constitution. About a third of it was eliminated, largely where the text was redundant. However, unless stated otherwise, the changes were not meant to alter the meaning of the constitution. After the amendments many of the old provisions were found in new articles and clauses, and anyone studying caselaw or text from before 1974 must keep this in mind.

Jurisprudence

The interpretation of its constitution in Minnesota’s courts has varied over the years, as with any state. In its first few decades the state supreme court, for example, limited the power of cities by invalidating many protectionist local licenses. That approach, however, fell out of favor in the twentieth century.

Many provisions in the Minnesota Constitution mirror those in the U.S. Constitution. Minnesota has at times followed the jurisprudence of the U.S. Supreme Court on interpreting this parallel language, but in recent decades the state supreme court has been more willing to distinguish itself in protecting certain individual liberties. One prominent example has been in search and seizure cases, where the court at times has rejected allowing the police to conduct searches that the U.S. Supreme Court would have upheld.

Anthony Sanders is a Senior Attorney at the Institute for Justice. He is the author of several articles on constitutional law and jurisprudence, including pieces appearing in the Iowa Law Review and American University Law Review.

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Guest Essayist: Scot Faulkner

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Admitted June 20, 1863 by ratifying the U.S. Constitution, West Virginia became the thirty-fifth state. The West Virginia State Constitution in current use was adopted in 1872.

The origins of West Virginia, its current challenges, and its political dynamics are all embodied in a unique case decided by the U.S. Supreme Court in 1870.

In Virginia v. West Virginia, 78 U.S. 11 Wall. 39 39 (1870) 78 U.S. (11 Wall.) 39 two counties demanded to be reinstated into Virginia.  The Court ultimately prevented Berkeley and Jefferson Counties from returning to Virginia.  In the process, the Civil War and the battlefield origins of West Virginia were reviewed in detail.  Three Justices dissented, asserting that the birth of West Virginia was chaotic and violated the rights of local citizens in the Eastern Panhandle.

The three judge dissent reveals origins of the state’s current political tensions.  Citizens in the Eastern Panhandle continue to agitate against the highly centralized state government.

Virginian political leaders initiated a process to secede from the Union in January 1861.  As a Commonwealth, Virginia gave deference to county representation.  Initially, the 152 delegates were solidly pro-Union.  However, old regional rivalries surfaced.

Delegates from the western counties of Virginia raised the issue of unequal political power with the eastern sections of the state.  This east-west divide had been simmering since the Virginia Constitutional Convention of 1829.  That State Constitution required a property qualification for voting. This disenfranchised many yeoman farmers in the more mountainous western counties. It also embraced counting slaves on a three-fifths basis for apportioning representation. Every county beyond the Alleghenies, except one, rejected the 1829 constitution, which still passed with overwhelming eastern support. The issue of regional inequality erupted again during the Virginia Constitutional Convention of 1850-1851.

On the morning of April 12, 1861, Confederate cannons opened fire on Fort Sumter in Charleston, South Carolina. After the Fort’s surrender on April 13, President Abraham Lincoln issued a call for 75,000 volunteers to forcibly return the rebellious states to the Union.  This was enough for the secession proponents in the Virginia Convention to prevail on April 17, 1861.

A formal vote, by county, was scheduled for May 23, 1861. Secessionists took matters into their own hands and attacked the Federal Arsenal in Harpers Ferry on the evening of April 18.

The Eastern Panhandle became the site for over 60 Civil War Battles.  Local communities descended into chaos as Union and Confederate armies competed for control of this critical north-south gateway.  Some towns changed hands dozens of times.

Pro-Union forces in western Virginia formed a separate state in June 1861.  Former Virginia Governor, and Confederate General, Henry Wise reported that, “The Kanawha Valley is wholly traitorous…You cannot persuade these people that Virginia can or ever will reconquer the northwest.”

Early in the Civil War, Union forces solidified control of northern Virginia (Arlington, Alexandria, and Fairfax). President Lincoln and the U.S. Congress merged this Unionist beachhead with the western counties as the “free” state of Virginia.

On August 20, 1861, President Lincoln empowered this military-backed civilian entity to establishment the separate state of West Virginia from the pro-Union western counties that opted-out of the Secession Convention.

A “free” state convention met in Wheeling, November 26, 1861, and drafted the “Constitution of West Virginia.”  It designated forty-four counties, “formerly part of the State of Virginia,” to be “included in and form part of the State of West Virginia.” The Counties of Pendleton, Hardy, Hampshire, Morgan, Frederick, Berkeley, or Jefferson were not named as part of the state.

The new West Virginia constitution left open the possibility of adding additional counties:

“if a majority of the votes cast at the election or elections held as provided in the schedule hereof, in the district composed of the Counties of Pendleton, Hardy, Hampshire, and Morgan, shall be in favor of the adoption of this constitution, the said four counties shall be included in and form part of the State of West Virginia, and if the same shall be so included, and a majority of the votes cast at the said election or elections, in the district composed of Berkeley, Jefferson, and Frederick, shall be in favor of the adoption of this constitution, then the three last-named counties shall also be included in and form part of the State of West Virginia.”

Under the terms of this Constitution, an inclusion vote was held on the first Thursday in April 1862 for citizens in the original forty-four counties, and those living in Pendleton, Hardy, Hampshire, and Morgan.

Significantly, no one in the counties of Berkeley, Jefferson, or Frederick voted on the matter, because:

“from the 1st of June, 1861, to the 1st of March, 1862, during which time these proceedings for the formation of a new state were held, those counties were in the possession and under the absolute control of the forces of the Confederate States, and that an attempt to hold meetings in them to promote the formation of the new state would have been followed by immediate arrest and imprisonment.”

A series of laws were passed within the “free” state of Virginia authorizing the military-backed State Legislature to certify popular support for counties being added to the new state of “West Virginia.” On January 31, 1863, the “free” state of Virginia gave consent for the counties of Berkeley and Jefferson to be transferred to the State of West Virginia.  Frederick County, still under Confederate control, remained in the old Virginia.

At the national level, an enabling act was approved by President Lincoln on December 31, 1862 for admitting West Virginia, on the condition that a provision for the gradual abolition of slavery be inserted in the state constitution.

The West Virginia state convention reconvened on February 12, 1863, and passed a new constitution including the abolition provision. The revised constitution was adopted on March 26, 1863.  On April 20, 1863, President Lincoln issued a proclamation admitting West Virginia as the 35th state effective on June 20, 1863.

West Virginians in the eastern panhandle bridled under being forcibly included in a Union state.  Rumors were rampant that the owners of the B&O Railroad engineered their inclusion because they did not want their rail line going through a southern state.  This led to the 1870 Supreme Court decision. As recently as the 1990s, the Mayor of Charles Town, the county seat of Jefferson County, explored reopening the case.

Unlike its origins, West Virginia chose not to be a Commonwealth.  It remains one of the most centralized state governments in America, possibly for maintaining unity among entrenched regional interests.  Only recently did the West Virginia legislature authorize limited home rule for certain municipalities.  The power of counties to control growth and levy impact fees is less than 20 years old.

West Virginia’s turbulent genesis, and its Charleston-centric political power, has led to the state earning a reputation for corruption and incompetence.  “Democrats are controlled by the coal mining unions; Republicans are controlled by the coal mining executives” observed a Republican legislator.

The state is challenged in finding its economic bearings as coal use declines.  It lacks internet access (West Virginia has the worst connectivity of the fifty states, while neighboring Virginia has the best).  Teacher unions and a bloated state bureaucracy make West Virginia one of the most expensive per-student school systems in the country, while consistently placing 49 or 50 in academic achievement.  The state steadily loses population, except for the eastern panhandle and the state Capitol of Charleston.

Except for recent Presidential elections, Democrats dominate the state.  In 2016, Republicans won control of both the House of Delegates and the State Senate for the first time in 82 years.  In Jefferson County, formed in 1803, it took until 2004 for the first Republican Clerk to be elected. The first Republican Jefferson County Prosecuting Attorney was elected in 2018.

Scot Faulkner advises corporations and governments on how to save billions of dollars by achieving dramatic and sustainable cost reductions while improving operational and service excellence. He was the Chief Administrative Officer of the U.S. House of Representatives. He started his Congressional career as an intern for Rep. Don Young (R-AK), then served on the legislative staffs of Rep. Arlan Stangeland (R-MN) and Rep. John Ashbrook (R-OH). Faulkner later served on the White House Staff and as an Executive Branch Appointee.

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Guest Essayist: Gary Porter

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Admitted in June 20, 1863 by ratifying the U.S. Constitution, West Virginia became the thirty-fifth state. It is known as “The Mountain State” with the West Virginia State Constitution in current use adopted in 1872

The story of how West Virginia became a state is an amazing story; full of constitutional intrigue and slight-of-hand worthy of Houdini himself.

Our story begins, where else, in 1776 Virginia.  Virginia’s Constitution of 1776 was a rush-job.  War with Britain was eminent and Virginia would need a new government to see it through this war; time was fleeting. Anticipating that the Continental Congress then meeting in Philadelphia would consider and likely approve a call for independence,[1] forty-five delegates assembled at Williamsburg, Virginia on May 6th. Seven weeks later, on June 29, Virginia had a new Constitution.

Virginia’s Declaration of Rights, which preceded the Constitution itself, is one of the finest written during the founding period.  Largely the work of George Mason of Fairfax, VA (with some important input from a 25-year old James Madison) it elucidates several enduring principles of constitutional liberty absent even from the U.S. Constitution and its Bill of Rights.

The new Constitution was put into effect immediately upon its signing, without even so much as a nod to the people of the state.  When this “non-ratification” was challenged in 1793, the Virginia Supreme Court ruled that “This constitution is sanctioned by the consent and acquiescence of the people for seventeen years…” Case dismissed.

The new Constitution immediately attracted critics, among them Thomas Jefferson and James Madison.  Jefferson had wanted to remain in Williamsburg and work on the Virginia Constitution; instead he had been sent north to Philadelphia and on July 4th 1776, America benefited from the decision to send Jefferson north.   From Philadelphia, Jefferson had sent back to Williamsburg his ideas for the state constitution.  Unfortunately, they arrived too late for consideration.[2]

Among its many features, the 1776 Constitution limited the right to vote primarily to property owners and men of wealth. This coupled with malapportionment of voting districts, concentrated power in the hands of the landowners and aristocracy of Southeastern Virginia.  In the only book he ever wrote, “Notes on the State of Virginia” (1785), Jefferson listed several “capital defects” of the Virginia Constitution, including the unequal representation in the legislature.

Year after year, petitioners, largely from the western counties, called on the Virginia Assembly to initiate a constitutional convention to correct this and other deficiencies; to no avail. The House of Delegates twice passed a bill calling for a convention only to have it fail in the more conservative Senate. Western counties in the state continued to experience continued growth and increasing irritation at their lack of representation in the Assembly.

Finally, from October 5, 1829 to January 15, 1830, a convention met to “fix” the defects in the Constitution.  It has been termed the last “gathering of giants.”  Present were two former U.S. Presidents (James Madison and James Monroe) and the sitting Chief Justice of the Supreme Court, John Marshall (the Court’s case load was apparently not as pressing as it is today).  This august group of 96 men would eventually supply three presidents, seven U.S. Senators, fifteen U.S. Representatives and four governors.[3]

Despite the pleading of James Madison and others, the convention failed to fully rectify the Constitution’s malapportionment problem. They loosened the requirements for suffrage, but kept representation by county, which failed to solve the basic problem facing the western counties, and their residents would continue to feel under-represented and disenfranchised for the next 30 years.  The 1829 constitution was put to a popular vote and passed, even while many residents in the west voted against it.

Over the next 20 years the western half of Virginia experienced a flood of new settlers.  Attracted by cheap plentiful land, these hardy souls set up much smaller farms than those in the east — farms manageable without resorting to slave labor.  Calls for emancipation of the slaves and more equitable representation in Virginia’s government continued to be heard from the west.

Another constitutional convention in 1850-1851 eliminated the property requirement for voting, established popular election for the Governor and all Virginia judges, and created the office of Lieutenant Governor, also elected.  Delegates took note of the rising tension between the slave-owning east and the emancipation-interested western counties.[4]

Rising tensions in the United States between the manufacturing North and the agrarian South, exacerbated by the issues of slavery, tariffs, nullification and state’s rights reached a breaking point on December 20th, 1860 when South Carolina seceded from the Union.  In response, the Virginia General Assembly called for a convention, to meet in Richmond on February 13, 1861,[5] to consider whether Virginia should join South Carolina.  By the end of January, six additional southern states had seceded.

On April 12, Fort Sumter was attacked and taken over by the South.  Three days later President Lincoln issued a call for the states to provide 75,000 Union troops, including three regiments of 2,340 men from Virginia. Although a previous resolution to secede had been defeated in the convention, on April 17, 1861, Lincoln’s call for troops became too much: the convention approved an “Ordinance of Secession,” by an 88-85 vote.  All of the western and several of the northern counties objected to the Legislature’s decision to secede, but Virginia voters overall approved the ordinance by a wide margin and the convention formally ratified the Constitution of the Confederate States of America on June 19, 1861.

Virginia’s western counties conducted “anti-secession” conventions in Wheeling, Virginia on May 11, and June 11, 1861.  The Second Wheeling Convention declared the offices of all government officials in Richmond who had voted for secession to be vacant and promptly filled them with their own people. Viewed from another perspective, the Restored Government seceded from the state of Virginia.  The “Restored Government of Virginia,” with Francis H. Pierpont as their Governor, next appointed two Senators and two Representatives, who were immediately recognized by the U.S. Congress (Lincoln welcomed the votes).

Once that was complete, the “Restored Government of Virginia” moved itself to Alexandria, where it operated until 1865, while the “Secession Government of Virginia” continued to meet in Richmond.

At this point, there were two Virginia governments in existence, one meeting in Richmond and considering itself part of the Confederacy and one meeting in Alexandria considering itself part of the Union.  Each claimed the entirety of the land mass of Virginia as its own.  Was any of this legal?  The plot thickens.

The “Restored Government,” acting in accordance with Article IV, Section 3 of the U.S. Constitution, passed a resolution allowing the counties of northwest Virginia to split off and form their own state called West Virginia.  Before West Virginia is admitted to the Union as a distinct state (in 1863) there were actually three separate governments operating within the confines of the state of Virginia: one part of the confederacy, one part of the Union and one hopeful of becoming a separate state.  The “Restored Government” approved a new constitution in 1864.  Since this constitution was enacted under wartime conditions and the “Restored Government” stood on rather shaky ground to begin with, the 1864 constitution is not recognized as part of the constitutional history of Virginia.

The Virginia Declaration of Rights contains a statement that “all [political] power is … derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.”  When “the people” delegate their sovereign power to a government, is that a one-way trip, is the power forever surrendered?  No, no, a thousand times no!  Virginia’s Ratification Convention of the U.S. Constitution in 1788 made this crystal clear by writing: “WE the Delegates of the people of Virginia…, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”[6]

How much political power did the “Restored Government of Virginia” actually enjoy?  That’s certainly debatable; same for the government of West Virginia, and the Secession government for that matter.  Certainly possessed some legitimate political power resulting from the people each government represented.

But wait, there’s more!

There is also a provision in the Virginia Declaration of Rights of 1776 (Section 14) that reads: “…the people have a right to uniform government, … therefore, … no government separate from, or independent of the government of Virginia, ought to be erected or established within the limits thereof.” How was the “Restored Government” not in violation of the 1776 constitution?  The “Restored Government” saw no problem, they considered the secessionist government officials to have vacated their offices, which the “restorers” gladly “filled.” Problem solved.

On December 5, 1865, however, the Virginia Assembly in Richmond passed legislation repealing all the acts of the “Restored Government” regarding secession of the 39 counties and the admission of Berkeley and Jefferson counties to the state of West Virginia.

In response, on March 10, 1866, Congress passed a resolution acknowledging the transfer of Berkeley and Jefferson counties from Virginia to West Virginia.

The Virginia Assembly in Richmond sued.  With not a single Justice from any of the southern states on the bench, the odds were stacked against Virginia.  In Virginia v. West Virginia (1871), the Court avoided the question of whether West Virginia’s existence as a state was constitutional and instead focused on the specific counties referred to in the trial. They quickly dispensed with a challenge by West Virginia that they lacked jurisdiction to hear the case and then sided with the “Restored Government of Virginia” that what had occurred was all right and proper, that Congress had properly approved West Virginia’s proposed Constitution and that the polling of the citizens that had been conducted during this process was legitimate.[7]

After the war concluded in favor of the Union, the “Restored Government of Virginia” moved its operations to Richmond and operated under the Constitution of 1864 until Virginia was placed under the military rule of Lieutenant General John M. Schofield.  Schofield called for a new constitutional convention, which meet in Richmond in December 1867.  They enacted a constitution containing a provision that prevented Virginia from ever again leaving the Union.

On October 8, 1869, Virginia voted to ratify the Fourteenth and Fifteenth Amendments, and by doing so began the process of re-admittance to the Union, which concluded on January 26, 1870 when President Ulysses S. Grant signed an act culminating the process (But wait, wasn’t the restored “Virginia” back in the Union as of April 1861?).

The present West Virginia Constitution, enacted in 1872, begins: “Since through Divine Providence we enjoy the blessings of civil, political and religious liberty, we, the people of West Virginia, in and through the provisions of this Constitution, reaffirm our faith in and constant reliance upon God and seek diligently to promote, preserve and perpetuate good government in the State of West Virginia for the common welfare, freedom and security of ourselves and our posterity.”

The Bill of Rights, which comprises Article 3, not surprisingly borrows heavily from the Virginia Declaration of Rights. It is not without its unique elements, however.

Section 11 states: “Political tests, requiring persons, as a prerequisite to the enjoyment of their civil and political rights, to purge themselves by their own oaths, of past alleged offences, are repugnant to the principles of free government, and are cruel and oppressive.  No religious or political test oath shall be required as a prerequisite or qualification to vote, serve as a juror, sue, plead, appeal, or pursue any profession or employment.  Nor shall any person be deprived by law, of any right, or privilege, because of any act done prior to the passage of such law.”  The first clause is a reaction to the state government passing imposing loyalty oaths in the aftermath of the Civil War.  The repugnancy of such oaths, in fact, provided much of the impetus for the 1872 Constitution.

Section 15a is also unique.  It reads: “Public schools shall provide a designated brief time at the beginning of each school day for any student desiring to exercise their right to personal and private contemplation, meditation or prayer.  No student of a public school may be denied the right to personal and private contemplation, meditation or prayer nor shall any student be required or encouraged to engage in any given contemplation, meditation or prayer as a part of the school curriculum.”

Section 22 makes it clear that “A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.” No confusing militia clause here.

Some other interesting provisions include a prohibition against duels, but only on the part of those who might later seek public office (Article 4 §10).

Since 1872, West Virginians have added more than fifty amendments to their Constitution and the rate of amendment gradually accelerated (there were only three amendments in the 19th century). There have been occasional calls for a new constitution. In 1964, the legislature passed a law that authorized the election of delegates to a constitutional convention. The movement then stalled after the state Supreme Court invalidated the law because it improperly apportioned delegate selection.

One is hard pressed to find any of the fifty United States with a more convoluted tale of statehood.  Welcome to “The Mountain State.”

Gary Porter is Executive Director of the