Guest Essayist: Joerg Knipprath

The adoption of the Declaration of Independence of “the thirteen united States of America” on July 4, 1776, formally ended a process that had been set in motion almost as soon as colonies were established in what became British North America. The early settlers, once separated physically from the British Isles by an immense ocean, in due course began to separate themselves politically, as well. Barely a decade after Jamestown was founded, the Virginia Company in 1619 acceded to the demands of the residents to form a local assembly, the House of Burgesses, which, together with a governor and council, would oversee local affairs. This arrangement eventually was recognized by the crown after the colony passed from the insolvent Virginia Company to become part of the royal domain. This structure then became the model of colonial government followed in all other colonies.

As the number and size of the colonies grew, the Crown sought to increase its control and draw them closer to England. However, those efforts were sporadic and of limited success during most of the 17th century, due to the isolation and the economic and political insignificance of the colonies, the power struggles between the King and Parliament, and the constitutional chaos caused in turn by the English Civil War, the Cromwell Protectorate, the Restoration, and the Glorious Revolution. There was, then, a period of benign neglect under which the colonies controlled their own affairs independent of British interference, save the inevitable local tussles between the assemblies and the royal governors jockeying for political position. Still, the increasingly imperial objectives of the British government and expansion of British control over disconnected territories eventually convinced the British of the need for more centralized policy.

This change was reflected in North America by a process of subordinating the earlier charter- or covenant-based colonial governments to more direct royal control, one example being the consolidation in the 1680s of the New England colonies, plus New York and New Jersey into the Dominion of New England. While the Dominion itself was short-lived, and some of the old colonies regained charters after the Glorious Revolution, their new governments were much more tightly under the King’s influence. Governors would be appointed by the King, laws passed by local assemblies had to be reviewed and approved by royal officials such as the Board of Trade, and trade restrictions under the Navigation Acts and related laws were enforced by British customs officials stationed in the colonies. William Penn and the other proprietors retained their possessions and claims, but the King, frequently allying himself with anti-proprietor sentiments among the settlers, forced them to make political concessions that benefited the Crown.

Trade and general imperial policy were dictated by Parliament and administered from London. Still, the colonial assemblies retained significant local control and, particularly in the decades between 1720 and 1760, took charge of colonial finance through taxation and appropriations and appointment of finance officers to administer the expenditure of funds. While direction of Indian policy, local defense, and intercolonial relations belonged to the Crown, in fact even these matters were left largely to local governments. The Crown’s interests were represented in the person of the royal governor. However strong the political position of those governors was in theory, in practice they were quite dependent on the colonial assemblies for financial support. The overall division of political authority between the colonial governments and the British government in London was not unlike the federal structure that the Americans adopted to define the state-nation relationship after independence.

A critical change occurred with the vast expansion of British control over North America and other possessions in the wake of the Seven Years’ War (the French and Indian War) in 1763. Britain was heavily indebted from the war, and its citizens labored under significant taxes. Thus, the government saw the lightly-taxed colonials as the obvious source of revenue to contribute to the cost of stationing a projected 10,000 troops to defend North America from hostilities from Indian tribes and from French or Spanish forces. Parliament’s actions to impose taxes and, after colonial protests, abandon those taxes, only to enact new ones, both emboldened and infuriated the Americans. This friction led to increasingly vigorous protests by various local and provincial entities and to “congresses” of the colonies that drew them into closer union a decade before the formal break. Colonials organized as the Sons of Liberty and similar grass-roots radicals destroyed British property and attacked royal officials, sometimes in brutal fashion. At the same time, British tactics against the Americans became more repressive, in ways economic, political, and, ultimately, military. That cycle began to feed on itself in a chain reaction that, by the early 1770s, was destined to lead to a break.

The progression from the protests of the Stamp Act Congress in 1765, to the Declaration of Resolves of the First Continental Congress and subsequent formation of the Continental Association to administer a collective boycott against importation of British goods in 1774, to the Declaration of the Causes and Necessity of Taking Up Arms issued by the Second Continental Congress in 1775, to the Declaration of Independence of 1776, shows a gradual but pronounced evolution of militancy in the Americans’ position. Protestations of loyalty to King and country and disavowal of a goal of independence were still common, but were accompanied by increasingly urgent promises of resistance to “unconstitutional” Parliamentary acts. American political leaders and polemicists advocated a theory of empire in which the local assemblies, along with a general governing body of the united colonies, would control internal affairs and taxation, subject only to the King’s assent. This “dominion theory” significantly reduced the role of Parliament, which would be limited to control of external commerce and foreign affairs. It was analogous to the status of Scotland within the realm, but was based on the constitutional argument that the colonies were in the King’s dominion, having emerged as crown colonies from the embryonic status of their founding as covenant, corporate, or proprietary colonies. Had the British government embraced such a constitutional change, as Edmund Burke and some other members urged Parliament to do, the resulting “British Commonwealth” status likely would have delayed independence until the next century, at least.

In early 1776, sentiment among Americans shifted decisively in the direction of the radicals. Continued military hostilities, the raising of American troops, the final organization of functioning governments at all levels, the realization that the British viewed them as a hostile population reflected in the withdrawal of British protection by the Prohibitory Act of 1775, and Thomas Paine’s short polemic Common Sense opened the eyes of a critical mass of Americans. They were independent already, in everything but name and military reality. Achieving those final steps now became a pressing, yet difficult, task.

The Declaration was the work of a committee composed of Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and Robert Livingston. They were appointed on June 11, 1776, in response to a resolution introduced four days earlier by Richard Henry Lee acting on instruction of the state of Virginia. Jefferson prepared the first draft, while Franklin and the others edited that effort to alter or remove some of the more inflammatory and domestically divisive language, especially regarding slavery. They completed their work by June 28, and presented it to Congress. On July 2, Congress debated Lee’s resolution on independence. The result was no foregone conclusion. Pennsylvania’s John Dickinson and Robert Morris, both of whom had long urged caution and conciliation, agreed to stay away so that the Pennsylvania delegation could vote for independence. The Delaware delegation was deadlocked until Cesar Rodney made a late appearance in favor. The South Carolina delegation, representing the tidewater-based political minority that controlled the state, was persuaded to agree. The New York delegates abstained until the end. Two days later, the Declaration itself was adopted. It was proclaimed publicly on July 8 and signed on July 19.

Jefferson claimed that he did not rely on any book or pamphlet to write the Declaration. Yet the bill of particulars in the Declaration that accused King George of numerous perfidies is taken wholesale, and frequently verbatim, from Chapter II of the Virginia Declaration of Rights and Constitution proposed by a convention on May 6, 1776, and approved in two phases in June. Moreover, Jefferson’s Declaration clearly exposes its roots in John Locke’s Second Treatise of Government. It would be astounding if Jefferson, a Virginian deeply involved in the state’s affairs, was unaware of such a momentous event or was oblivious to the influence of Locke on the many debates and publications of his contemporaries.

Three fundamental ideas coalesced in the Declaration: 17th-century social compact and consent of the governed as the ethical basis of the state, a right of revolution if the government violates the powers it holds in trust for the people, and classic natural law/natural rights as the divinely-ordained origin of rights inherent in all humans. The fusion of these different strands of political philosophy showed the progression of ideas that had matured over the preceding decade from the at-times simplistic slogans about the ancient rights of Englishmen rooted in the king’s concessions to the nobles in Magna Charta and from the incendiary proclamations by the Sons of Liberty and other provocateurs.

The structure was that of a legal brief. The King was in the dock as an accused usurper, and he and the jury of mankind were about to hear the charges and the proposed remedy. At the heart of the case against the King were some fundamental propositions, “self-evident truths”: Mankind is created equal; certain rights are “unalienable” and come from God, not some earthly king or parliament; governments “derive their just powers from the consent of the governed” and exist to secure those rights; and, borrowing heavily from Locke, there exists a residual recourse to revolution against a “long train of abuses and usurpations.”

Once the legal basis of the complaint was set, supporting facts were needed. Jefferson’s list is emotional and provocative. As with any legal brief, it is also far from impartial or nuanced. Some of the nearly thirty accusations seem rather quaint and technical for a “tyrant,” such as having required legislative bodies to sit “at places unusual, uncomfortable, and distant from the depository of their public Records.” Others do not strike us as harsh under current circumstances as they might have been at the time, such as King George having “endeavoured to prevent the population of these States; for that purposed obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither.” At least one other, describing the warfare by “the merciless Indian Savages,” sounds politically incorrect to the more sensitive among our modern ears.

The vituperative tone of these accusations is striking and results in a gross caricature of the monarch. But this was a critical part of the Declaration. Having brushed aside through prior proclamations and resolves Parliament’s legitimacy to control their affairs, the Americans needed to do likewise to the King’s authority. King George was young, energetic, and politically involved, with a handsome family, and generally popular with the British people. Many Americans, too, had favored him based on their opinion, right or wrong, that he had been responsible for Parliament repealing various unpopular laws, such as the Stamp Act. As well, as Hamilton remarked later at the constitutional convention in Philadelphia, the King was bound up in his person with the Nation, so it was emotionally difficult for many people to sever that common identity between themselves and the monarch. To “dissolve the political bands” finally, it would no longer suffice to blame various lords and ministers for the situation; the King himself must be made the villain.

Before the ultimate and extraordinary remedy of independence could be justified, it must be shown, of course, that more ordinary relief had proved unavailing. Jefferson mentions numerous unsuccessful warnings, explanations, and appeals to the British government and “our British brethren.” Those having proved ineffective, only one path remained forward: “We, therefore, the Representatives of the united States of America … declare, That these United Colonies are … Independent States.”

The Declaration was a manifesto for change, not a plan of government. That second development, moving from a revolutionary to a constitutional system, would have to await the adoption of the Articles of Confederation and, eventually, the Constitution of 1787. True, since the early days of the Republic, various advocates of causes such as the abolition of slavery have held up the Declaration’s principles of liberty and equality as infusing the “spirit” of the Constitution. But this has always been more a projection by those advocates of their own fervent wishes than a measure of what most Americans in 1776 actually believed.

Being “created equal” was a political idea in that there would be no hereditary monarchy or aristocracy in a republic based on consent. It was also a religious idea, in that all were equal before God. It did not mean, however, that people were equal “in their possessions, their opinions, and their passions,” as James Madison would mockingly write in The Federalist No. 10. He and Jefferson, along with most others, were convinced that, if people were left to their own devices, the natural inequality among mankind would sort things out socially, politically, and economically. Even less did such formal equality call for affirmative action by government to cure inequality of condition. It was, after all, as Madison explained in that same essay, “a rage for paper money, for an abolition of debts, for an equal division of property” that were the “improper and wicked project[s]” against which the councils of government must be secured.

In the specific context of slavery, the Declaration trod carefully. Jefferson’s criticism of the British negation of colonial anti-slave trade laws in his original draft of the Declaration was quickly excised by cooler heads who did not want to stir that pot, especially since almost all of the states permitted slavery. Jefferson’s later lamentation regarding slavery that “I tremble for my country when I reflect that God is just” was a distinct minority view. Many Americans had escaped grinding poverty in Europe, had served years of indentured servitude, or lived under dangerous and hardscrabble frontier conditions. As a result, as the historian Forrest McDonald observed, few of them trembled with Jefferson. It remained for later generations and the crucible of the Civil War and Reconstruction to realize the promise of equality that the Declaration held for the opponents of slavery.

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: Jeff Truitt

For thousands of years, nations have looked to the sea as a “global commons” that provides a source of sustenance, a means to efficiently trade goods in mutually advantageous economic transactions, and as a highway for the transport of armies. Since our nation’s own earliest origins, the advantages of efficient commerce over the seas have contributed to our rise as an ascendant economic power, our internal freedom, and our ability to project power and stability around the globe.

In 1775, the thirteen American Colonies were under attack by hostile forces from across the Atlantic Ocean. The Navy celebrates October 13, 1775 as the birth of the United States Navy because that is the date on which the Continental Congress officially authorized the funding of two ships to interdict British forces. However, a month earlier, General George Washington, acting unilaterally, deployed three schooners off the coast of Massachusetts and thereby provisioned the colonies with their first naval forces. Over the course of the Revolutionary War, more than 50 Continental vessels harassed the British, seized munitions, supplied the Continental Army, and engaged in international commerce with European allies like France.

The greatest naval successes of the Revolutionary War were secured by privateers, most famously John Paul Jones whose remains are kept in the crypt beneath the Chapel at the U.S. Naval Academy. A privateer was a private Sailor who was granted authority by a sovereign power by a “Letter of Marque” to intercept civilian merchant ships belonging to an enemy power.  These “prize” ships were hauled into a court which had the authority to award a share of the spoils to the privateer and the ship’s owners. Some 1,700 privateers captured more than 2,200 enemy ships during the Revolutionary War, compared to perhaps 200 ships captured by the Continental Navy.

The game changing event of the American Revolution was the defeat of the English forces at Yorktown in 1781. This forced surrender occurred because the French fleet defeated the English fleet at Chesapeake and were thereby poised to annihilate the English columns with their powerful cannon. Command of the littoral waters enabled land-based forces to prevail, a pattern repeated often throughout history.

Quality Navy ships are expensive and by 1785, the Continental Navy had been completely disbanded. After a decade without a Navy, State-sponsored pirate regimes in North Africa prevented U.S. merchant vessels from engaging in free commerce in the Mediterranean. The Naval Act of 1794 created a standing Navy, featuring the commissioning of six technologically sophisticated vessels that could engage or outrun any ship it encountered. One of them was the USS Constitution, still docked in Boston today.

After restoring freedom of navigation to the Mediterranean, the U.S. Navy prevented the invasion of New York state by the British in the War of 1812. Soon after, the U.S. Navy helped stamp out piracy on the high seas in South America, Africa and the Pacific. Between 1819 and the start of the Civil War, the U.S. Navy operated an Africa squadron which suppressed the slave trade, capturing more than 36 slave ships during this time. The U.S. Navy played a critical role in choking off supplies to the South during the Civil War, again highlighting the power of international trade to shape world events.

Interestingly, although European powers outlawed privateering in the 1856 Declaration of Paris following the Crimean War, the United States declined to join this convention because we feared that our underdog Navy might need such assistance. In the 1880s, we invested in modern steel battleships and by 1900 had built the world’s fifth largest Navy.  Privateering was outlawed for good at the Hague Conference of 1907.

Hopefully most Americans are still aware of the critical role that the U.S. Navy played in defending twice against the German threat in as many generations, as well as its defeat of Imperial Japan in 1945.

Since World War II, the United States Navy has provided a safety umbrella on the oceans around the world for international shipping.  Whether it is the trade of wheat, oil, pork, steel, timber, or finished goods, global commerce is enabled by the protection afforded by the United States Navy. While U.S. taxes support a strong Navy, safety at sea is a collective benefit enjoyed by everyone.

It is critical that we continue to support navigational rights around the world. The right of innocent passage hearkens back hundreds of years and contributed to the economic development of millions of souls.

Today, China has built a fleet that rivals the size of the United States forces. However, China does not vocally advocate for international freedom of the seas. To the contrary, it has claimed as its private domain most of the South China Sea, an area roughly the size of the Gulf of Mexico. This zone is bordered by a number of other coastal states with superior claims, according to an international tribunal that considered the matter in exhaustive detail.

In order to guarantee international freedom and economic prosperity, it is important that the United States continue to invest in a strong Navy and to support international allies who are committed to freedom of navigation on the high seas.

Jeff Truitt serves as a Captain in the U.S. Navy Reserve. He frequently leads small group seminars at the U.S. Naval War College in operational maritime law, and previously served on active duty as a submarine officer in the Cold War.

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Guest Essayist: David B. Kopel

During the first six decades of the eighteenth century, the American colonies were mostly allowed to govern themselves. In exchange, they loyally fought for Great Britain in imperial wars against the French and Spanish. But in 1763, after the British and Americans won the French and Indian War, King George III began working to eliminate American self-government. The succeeding years saw a series of political crises provoked by the king and parliament. What turned the political dispute into a war was arms confiscation at Lexington and Concord, Massachusetts, on April 19, 1775.

In 1774, the British government had realized that because armed Americans were so numerous, they could not be frightened into compliance with British demands. So in the latter months of 1774, the King and his Royal Governors in America instituted a gun control program. All firearms and ammunition imports to the American colonies were forbidden. At the governors’ command, British soldiers began raiding American armories, which stored firearms for militiamen who could not afford their own, and also held large quantities of gunpowder. Because the raids were accomplished peacefully in surprise pre-dawn maneuvers, they caused outrage, but nothing more. Both sides knew that if the British attempted to seize arms by force, the Americans would fight.

Ever since 1768, Boston had been occupied by a British army. In April 1775, a spy informed British General Gage that the Americans had secreted a large quantity of gunpowder in Concord, Massachusetts. Gage ordered his army to seize the American powder. This time, the Americans found out in advance.

On the night of April 18, 1775, British warships conveyed Redcoats across Boston Harbor, so they could march to Concord. Meanwhile, Paul Revere and William Dawes rode from town to town, shouting the warning “The British are coming.” The alarm was spread far and wide by the ringing of church bells and firing of guns.

To get to Concord, the British would have to march through Lexington; while the men of Lexington prepared to meet the British, the women of Lexington assembled ammunition cartridges late into the night.

The American Revolution began at dawn on April 19, 1775, when 700 Redcoats commanded by Major John Pitcairn confronted 200 Lexington militia on the town green. The militiamen, consisting of almost all able-bodied men sixteen to sixty, supplied their own firearms, although a few poor men had to borrow a gun.

“Disperse you Rebels—Damn you, throw down your Arms and disperse!” ordered Major Pitcairn. American folklore remembers the perhaps apocryphal words of militia commander Captain John Parker: “Don’t fire unless fired upon! But if they want to have a war, let it begin here!” The American policy was to put the onus of firing first on the British. Yet someone pulled a trigger, and although the gun did not go off, the sight of the powder flash in the firing pan instantly prompted the Redcoats to mass fire. The Americans were quickly routed.

With a “huzzah” of victory, the Redcoats marched on to Concord. By one account, the first man in Concord to assemble after the sounding of the alarm was the Reverend William Emerson, gun in hand.

At Concord’s North Bridge, the town militia met with some of the British army, and after a battle of two or three minutes, drove off the Redcoats. As the Reverend’s grandson, poet Ralph Waldo Emerson, later recounted in the “Concord Hymn”:

By the rude bridge that arched the flood,

Their flag to April’s breeze unfurled,

Here once the embattled farmers stood,

And fired the shot heard round the world.

Notwithstanding the setback at the bridge, the Redcoats had sufficient force to search the town for arms and ammunition. But the main powder stores at Concord had been hauled to safety before the British arrived.

Having failed to get the gunpowder, the British began to withdraw back to Boston. On the way, things got much worse for them as armed Americans swarmed in from nearby towns. Soon they outnumbered the British two-to-one.

Some armed American women fought in the battle. So did men of color, including David Lamson, leading a group of elderly men who, like him, were too old to be in the militia, but intended to fight anyway.

Although some Americans cohered in militia units, many just fought on their own, taking sniper positions wherever the opportunity presented itself.

Rather than fight in open fields, like European soldiers, the Americans hid behind natural barriers, fired from ambush positions, and harried the Redcoats all the way back to Boston.

One British officer complained that the Americans acted like “rascals” and fought as “concealed villains” with “the cowardly disposition . . . to murder us all.” Another officer reported: “These fellows were generally good marksmen, and many of them used long guns made for Duck-Shooting.”

The British expedition was nearly wiped out. It saved from annihilation by reinforcements from Boston—and by the fact that the Americans started running out of ammunition and gunpowder.

British Lieutenant-General Hugh Percy, who had led the rescue of the beleaguered expeditionary force, recounted:

“Whoever looks upon them as an irregular mob, will find himself much mistaken. They have men amongst them who know very well what they are about, having been employed as Rangers [against] the Indians & Canadians, & this country being much [covered with] wood, and hilly, is very advantageous for their method of fighting. Nor are several of their men void of a spirit of enthusiasm, as we experienced yesterday, for many of them concealed themselves in houses, & advanced within [ten yards] to fire at me & other officers, tho’ they were morally certain of being put to death themselves in an instant.”

At day’s end, there were 50 Americans killed, 39 wounded, and 5 missing. Among the British 65 were killed, 180 wounded, and 27 missing. On a per-shot basis, the Americans inflicted higher casualties than the British regulars.

That night, the Americans began laying siege to Boston where General Gage’s standing army was located. Soon, the British would begin confiscating guns in Boston. Reinforced by volunteers from other colonies, and commanded by General George Washington, the American forces would maintain the siege of Boston until the British gave up and sailed away on March 17, 1776.

Further reading: David B. Kopel, How the British Gun Control Program Precipitated the American Revolution, 38 Charleston Law Review 283 (2012).

David B. Kopel is adjunct professor of constitutional law at the University of Denver, Sturm College of Law.

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Guest Essayist: Craig Bruce Smith

In a wooded clearing overlooking an imposing rock formation, roughly sixty-five miles outside modern day Pittsburgh, the face of North America would be irreparably altered. On May 28, 1754 this spot witnessed the first shot of the French and Indian War (or the Seven Years’ War around the world). The shot was fired under the order, or possibly even by the hand, of a twenty-two-year-old Virginian militia officer named George Washington. At the break of dawn and under the cover of the forest, British, French, and Native forces engaged in this brief (but globally impactful) battle that escalated the long-simmering tension over the contested lands of the Ohio Valley into a world war felt on five continents.

For generations there had been a tenuous stalemate in the territory west of the Appalachian Mountains and east of the Mississippi River between the French, British, and various Native American nations. Thinly settled by European colonists, there was a lack of clear authority or the means to impose it. It was a situation that allowed the Natives to pit the two colonial powers against each other. But as these European empires attempted to expand, this balance was shattered. All accused the others of encroaching upon their lands and sovereignty.

By 1753, the French began building a series of fortifications in the Ohio Valley. That same year, Virginia Lt. Governor Robert Dinwiddie tasked surveyor-turned-newly-appointed-militia-major George Washington (who spoke no French, contrary to the expectations of the eighteenth-century British gentleman) with carrying a message to the French commander, Captain Jacques Legardeur de Saint-Pierre, to withdraw from the contested lands. No retreat followed.

The prize of the region was the coveted strategic position at the intersection of the Ohio, Monongahela, and Allegheny Rivers. The British had previously established a small outpost, named Fort Prince George (or Trent’s Fort after Pennsylvania trader William Trent), to control trade and stake their own claim. On April 17, 1754, a sizeable French force under Captain Claude-Pierre Pécaudy, sieur de Contrecœur, drove the tiny overmatched garrison at Trent’s Fort under Ensign Edward Ward to surrender without a shot being fired. In its place rose Fort Duquesne (today’s Pittsburgh): a symbol of French authority that challenged not only the British but also the Mingo people (part of the Ohio Iroquois) and their leader Tanacharison (also known as Tanaghrisson or “Half-King”).

The fall of Trent’s Fort sparked alarm in the Virginia capital of Williamsburg and before news even reached London the now Lieutenant Colonel Washington and his force of 159 militiamen were marching to the frontier to combat the French threat. From the standpoint of the British and their new Native allies, it could be asserted that French incursions had initiated hostilities, but what followed would escalate the conflict into a war.[i]

After Washington and his troops reached the Great Meadows (located in present-day Farmington, PA), Silver Heels, a Native scout and warrior, reported a band of some fifty French soldiers “hidden” in a nearby encampment in a small glen surrounded by the dense wilderness. Their intentions were clearly set on ambushing Washington and his men, at least according to Tanacharison. The Mingo chief may have let personal matters influence his assessment of the situation, as he was convinced the French meant to murder him and his family. He alleged that this patrol was there “to take and kill all the English they should meet.”[ii] Washington decided to act.

Under the cover of darkness and a torrent of rain, a mixed band of forty militiamen and twelve Natives crept single file though the woods and surrounded the unsuspecting French patrol. As night turned to morning, Washington stood atop a rocky hill, looked down upon his adversaries, gave the command to fire, and personally loosed the first shot (as a signal or with aim is unclear).[iii] A volley immediately followed his discharge. Washington claimed the startled French, commanded by Ensign Joseph Coulon de Villiers, Sieur de Jumonville, had “discovered” them and the initial shots were to stop their mad dash to arm themselves. The French version differed, but regardless multiple volleys flashed on both sides. The battle (probably better described as a skirmish) only lasted about fifteen minutes and ended as quickly as it began, with the French “routed” by British bullets and at least some of the retreating men meeting “their destiny by the Indian tomahawks” wielded by Tanacharison and his warriors. Just over twenty Frenchmen survived.[iv]

Their wounded commander, Jumonville, claimed he was on a diplomatic mission. much like Washington had been in 1753. If it were true, under the rules of war and honor, the French ambassador should not have been attacked, as his “character being always sacred.”[v] But this was after the fact and there was a clear communication problem between the two leaders: Jumonville spoke French and Washington only understood English. Tanacharison, having dealt with each colonial power, was fluent in both. Before Washington could make sense of what was happening, Tanacharison buried his tomahawk into Jumonville’s head, killing him on the spot. Removing his embedded hatchet, the Mingo leader turned to French officer Michel Pepin dit La Force and taunted him “now I will let you see that the Six Nations [of Iroquois] can kill as well as the French.”[vi] As the chief raised his blood-drenched blade, the terrified La Force hid behind an undoubtedly shocked Washington who intervened, saved the man’s life, and stopped any further slaughter.

Why had Tanacharison acted this way? Perhaps it was to escalate the conflict to a full-fledged war. Or perhaps it was to defend himself, his family, and his people from what he perceived as French aggression Despite Tanacharison vehement assertions that the French “intentions were evil,” the affair ensured that Washington “never” again dealt with these Native allies or their leader.[vii]

Though the Virginian officer had not ordered the deathblow, his sense of honor, the possibility of truth of the diplomatic mission, and the lack of quarter given to the wounded Jumonville likely troubled him deeply and he feared its implications. Washington’s account of the incident to Dinwiddie glossed over it, saying, “amongst those that were killed was Monsieur De Jumonville the Commander.”[viii] In turn, Washington who was in command omitted Tanacharison’s execution, perhaps because it would reflect a lack of control or authority on the part of the novice Virginian officer.

Still, the full magnitude of this event would not be felt until a few months later in early July, when the again-promoted Col. Washington’s Virginia regiment (joined by those of Captain James Mackay’s South Carolina Independent Company) were besieged inside the wooden palisades of Fort Necessity on the nearby Great Meadows by a vastly superior French force. At the head of the 600 attackers was Captain Louis Coulon de Villiers, Jumonville’s older brother, who was tasked with seeking reprisals for the Battle of Jumonville Glen. Washington and Mackay were forced to surrender. Again plagued by his lack of French, Washington signed the Articles of Capitulation improperly translated by Jacob Van Braam, his former fencing master who possessed a limited grasp of French himself. He thought it said “death” or “killing of,” which was technically accurate, but it actually declared that he had assassinated Jumonville, who was on a diplomatic mission.[ix] This was considered a violation of one of the technically inviolable rules of war. But the grievous language would only be revealed after the French published the document—shaming Washington and Britain before the world.

The young Virginian attempted to defend his honor by refusing to accept this version of events and continued to insist, to both himself and the world, that Jumonville was not a diplomat, but “only a simple petty French officer; an ambassador has no need of spies.” Considering the standards of gentility of the time, Jumonville’s dress, bearing, and actions, in Washington’s estimation, precluded his being an emissary—he didn’t look the part. Rather, he argued, the French diplomatic mission was simply “A plausible pretense to discover our camp, and to obtain the knowledge of our forces and our situation!”[x]

But regardless of Washington’s justifications, his signature allowed the French to cast him as an “assassin,” and while the British disregarded the charge, it gave King Louis XV a pretext for a war. Despite initially drawing harsh British criticism, Washington’ reputation would survive and thrive as a “noble” hero based on his relationship with Dinwiddie and the influential aristocratic Fairfax family. Though he never altered his story, Washington would consider the lesson throughout his life, especially during the American Revolution, where he dealt with British Major John André (part of Benedict Arnold’s treason) as a spy, despite his looking the part of a gentleman.[xi]

While the Battle of Jumonville Glen may not be considered the start of the war from the British perspective, it resulted in an expanded colonial conflict engulfing the world in violence, which then began the rift between Britain and their colonists that set the stage for the American Revolution.

Craig Bruce Smith is a historian and the author of American Honor: The Creation of the Nation’s Ideals during the Revolutionary Era. For more information visit www.craigbrucesmith.com or follow him on Twitter @craigbrucesmith. All views are that of the author and do not represent those of the Federal Government, the US Army, or Department of Defense.

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[i] For an excellent overview of the French and Indian War and its early battles see the following referenced throughout this article: Fred Anderson. The War that Made America: A Short History of the French and Indian War. (New York: Viking, 2005); David Preston. Braddock’s Defeat: The Battle of the Monongahela. (New York: Oxford University Press, 2015). For a brief overview of the incident at Jumonville Glen, also referenced throughout: Joseph F. Stoltz III, “Jumonville Glen Skirmish,” Digital Encyclopedia of George Washington, https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/jumonville-glen-skirmish/

[ii] George Washington, “Expedition to the Ohio,” 1754, Founders Online. https://founders.archives.gov/?q=jumonville&s=1111311111&sa=&r=1&sr=,

[iii] “An Ohio Iroquois Warrior’s Account of the Jumonville Affair, 1754,” in Preston, Braddock’s Defeat, Appendix E and p. 25-28.

[iv] Washington, “Expedition to the Ohio,”1754; “An Ohio Iroquois Warrior’s Account of the Jumonville Affair, 1754”; Stoltz, “Jumonville Glen Skirmish.”

[v] Washington, “Expedition to the Ohio,”1754.

[vi] “An Ohio Iroquois Warrior’s Account of the Jumonville Affair, 1754.”

[vii] Washington, “Expedition to the Ohio,” 1754, Founders Online.

[viii] George Washington to Robert Dinwiddie, 29 May 1754, Founders Online.

https://founders.archives.gov/?q=jumonville&s=1111311111&sa=&r=2&sr=

[ix] “Articles of Capitulation,” [3 July 1754], Founders Online. https://founders.archives.gov/?q=jumonville&s=1111311111&sa=&r=10&sr=; Paul K. Longmore. The Invention of George Washington. (Charlottesville: University of Virginia Press, 1999), p. 22-24.

[x] Washington, “Expedition to the Ohio,” 1754, Founders Online; Craig Bruce Smith, American Honor: The Creation of the Nation’s Ideals during the Revolutionary Era. (Chapel Hill: University of North Carolina Press, 2018), p. 38-40.

[xi] Smith, American Honor, p. 38-40, 160.

Guest Essayist: Joerg Knipprath

“In the name of God, amen. We whose names are under written … [h]aving undertaken for the Glory of God, and advancement of the christian [sic] faith, and the honour of our King and country, a voyage to plant the first colony in the northern parts of Virginia; do by these presents solemnly and mutually, in the presence of God and one another, covenant and combine ourselves together into a civil body politick, for our better ordering and preservation, and furtherance of the ends aforesaid: And by virtue hereof, do enact, constitute and frame such just and equal laws, ordinances, acts, constitutions and officers, from time to time, as shall be thought most meet and convenient for the general good of the colony ….”

Thus pledged 41 men on board the ship Mayflower that day, November 11, 1620, having survived a rough 64-day sea voyage, and facing an even more grueling winter and a “great sickness” like what had ravaged the Jamestown colony in Virginia. These Pilgrim Fathers had sailed to the New World with their families from exile in Leyden, Holland, with a stop in England to secure consent from the Virginia Company to settle on the latter’s territory. They were delayed by various exigencies from leaving England until the fall of 1620. The patent from the Company permitted the Pilgrims to establish a “plantation” near the mouth of today’s Hudson River, at the northern boundary of the Company’s own grant.

For whatever reason, either a major storm, as the Pilgrims claimed, or intent to avoid the reach of English creditors’ claims on indentured servants, as some historians allege, the ship ended up at Cape Cod on November 9. Bad weather and the precarious state of the passengers made further travel chancy, and the Pilgrim leaders decided to find a nearby place for settlement. Cape Cod was deemed unsuitable for human habitation. Instead, the Pilgrims disembarked on December 16 at Plymouth, so named earlier by Captain John Smith of the Virginia Company during one of his explorations. Since they were now a couple of hundred miles outside the Virginia Company’s territory, their patent was worthless. It became necessary to establish a new binding basis for government of their society.

The result was the Mayflower Compact, infused with a remarkable confluence of religious and political theory. The Pilgrims, like the Puritans who settled Massachusetts Bay in 1630, were dissenters from the Church of England. The former opted to separate themselves from what they perceived as the corruption of the Church of England, whereas the less radical nonconformists, the Puritans, sought to reform that church from within. Both groups, however, found the political and religious climate under the Stuart monarchs to be unfriendly to dissenters.

As common historical understanding has it, both groups sought to escape to the New World to practice their religion freely. However, that meant their religion. They set out to establish their vision of the City of God in an earthly commonwealth. As the Compact stated, their move was “undertaken for the Glory of God, and advancement of the christian faith.” Neither group set out to establish a classically liberal secular society tolerant of diverse faiths or even a commonwealth akin to the Dutch Republic, with an established church, yet accepting of religious dissent. The corrosive effect of such dissent would have been particularly dangerous to the survival of the small Pilgrim community clinging precariously to their isolated new home in Plymouth. Indeed, once the colony became established and became focused on commerce and trade, more devout members disturbed by this turn to the material left to form new communities of believers.

The religious orientation of the Mayflower Compact grew out of the Pilgrims’ Calvinist faith. In contrast to the Roman Catholic Church and its successor establishment in the Church of England, Calvinists rejected centralized authority with its dogmas and traditions as having erected impious barriers and distractions to a personal relationship with God. Instead, the congregation of like-minded believers gathered in community. It was a community founded on consent of the participants and given meaning by their shared religious belief. Those who rejected significant aspects of that belief would leave (or be shunned).

In Europe, those religious communities operated within–and chafed under–hostile existing political orders, most of which still were organized on principles other than consent of the participants. Once transplanted across the Atlantic Ocean, the Pilgrims were free of such restraints and could organize their religious life together with their political commonwealth within the Calvinist congregational framework. Their brethren, the Puritans of Massachusetts Bay, established their colony on the same type of religious foundation, as did a number of later communities that spread from the original settlements. The successor to the Puritans and Pilgrims was the Congregational Church, organized along those communitarian lines based on consent. That church became the de facto established church of Massachusetts Bay Colony and the state of Massachusetts under a system of state tax support, a practice that survived until 1833.

On the political side, the Mayflower Compact was one of three types of constitutions among the colonies in British North America. The others were the joint stock company or corporation model of the Virginia Company and the Massachusetts Bay Company, and the proprietary grant model, the dominant 17th-century form used for the remaining colonies, such as the grant to Lord Calvert for Maryland and William Penn for Pennsylvania. Of the three, the Mayflower Compact most profoundly and explicitly rested on the consent of the governed. It provided the model for other early American “constitutions” in New England, such as the 1636 compact among Roger Williams and his followers in founding Providence, Rhode Island, the compacts among settlers that similarly established Newport and Portsmouth in Rhode Island and the New Haven Colony in 1639, and, most significantly, the Fundamental Orders of Connecticut. The Orders, in 1639, united the Connecticut River Valley towns of Hartford, Windsor, and Wethersfield and provided a formal frame of government. Like the Mayflower Compact, the Orders rested on the consent of the people to join in community, but in their structure they closely resembled the Massachusetts Bay Company agreement.

The political analogue to the congregational organization of the Calvinist denominations was the “social compact” theory, an ethical basis for the state that also rested on the consent of the governed. Classical Greek theory had held that the polis represented a progression of human association beyond family and clan and evolved as the consummate means conducive to human flourishing. In its medieval scholastic version epitomized by the writings of Thomas Aquinas, the state was ordained by God to provide for the welfare and happiness of its people within an ordered universe governed by God’s law. By contrast, the social compact theory rested on the will of the individuals that came together to found the commonwealth. It was a rejection of the static universal political (and religious) order that had governed Western Christendom and in which one’s status and privileges depended on one’s place in that order. After the Reformation, Protestant sects had many, sometimes conflicting, assumptions about the nature and the specifics of the relationship between the believer and God. In similar manner, social compact theory was not a unified doctrine, but varied widely in its details of the relationship between the individual and the state, depending on the particular proponent.

The two social compact theorists with the greatest influence on Americans of the Revolutionary Era were Thomas Hobbes and John Locke, with the latter’s postulates the more evident among American essayists and political leaders. Locke’s reflections on religion and politics were greatly influenced by the Puritanism of his upbringing. Although the governments established under the various state constitutions, as well as those created through the Articles of Confederation and the Constitution of 1787, more closely resembled the corporate structures of the colonial joint stock company arrangements, they were formed through the direct or indirect consent of the governed. The Constitution of 1787, for example, very conspicuously required that no state would become a member of the broader “united” community without its consent. In turn, such consent had to be obtained through the most “explicit and authentic act” of the state’s people practicable under the circumstances, that is, through a state convention.

To whatever concrete extent the Mayflower Compact’s foundation on consent may have found its way into the organizing of American governments during the latter part of the 18th century, it is the Declaration of Independence that most clearly incorporates the compact’s essence. The influence of Locke and his expositors on Thomas Jefferson’s text has been analyzed long and frequently. But it is worth noting some of the language itself. The Declaration asserted that Americans were no longer connected in any bond (that is, any obligation) to the people of Britain, just as the Pilgrims, having sailed to a wilderness not under the control of the Virginia Company, believed that they were not bound by the obligations of the patent they had received. The Americans would establish a government based on the “consent of the governed,” “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness,” just as the signatories of the Mayflower Compact had pledged.

So it came about that a brief pledge, signed by 41 men aboard a cramped vessel in 1620, “with no friends to welcome them, no inns to entertain or refresh them, no houses, or much less towns to repair unto to seek for succour,” with “a mighty ocean which they had passed…and now separate[d] them from all the civil parts of the world” behind them, and with “a hideous and desolate wilderness, full of wilde beasts and wilde men” in front of them, deeply affected the creation of the revolutionary political commonwealth founded in the New World a century and a half later.

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

 

— The yearning for self-government springs eternal –

In the first Federalist essay, Alexander Hamilton famously observes: It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. Reflection and choice or accident and force, which will it be? Fortunate indeed are those who get to choose.

**

The Virginia colony was off to a rocky start.

As April 26, 1607 dawned, the colonists spied the coastline of Virginia. Three weeks later they came ashore 40 miles upriver at Jamestown.

After surviving a harrowing five-month voyage from England, the intrepid Virginia colonists anxiously opened the sealed envelope that would identify the seven members who were to govern them. As they read off the names, one stood out: John Smith? Whoops! John Smith was being held on board their ship, securely in chains. There had been this little “incident” mid-voyage, you see.

The exceptionally slow voyage (a normal crossing took three months) allowed disease to spring up in the cramped quarters and factions to form among the colonists. This did not escape notice of the expedition’s leader: Captain Christopher Newport. When the expedition docked at the Canary Islands to take on supplies, Smith, a swashbuckling adventurer and soldier whose life story reads like a Hollywood script, was suddenly clapped in chains by Newport, charged with trying to “usurp the government, murder the council, and make himself king (of Virginia).” He would eventually be released to assume his place on the council, but suspicions persisted.

The plan of the Virginia Company was to govern the new colony through a 13-man council in England and a similar though smaller council in Jamestown. What the planners of the expedition did not count on, were the austere and hazardous conditions the adventurers would encounter: Within six months, 80% of the colonists were dead from illness, the seven-man council had been reduced to four, and President of the Council, Edward Wingfield, had been impeached for maladministration. He was the one now in chains, perhaps the same ones that had restrained John Smith. Captain John Ratcliffe replaced Wingfield as President of the Council, but Smith would soon assume de facto command of the colony.

Unwilling to simply let the colony die, Smith enacted harsh measures, akin to martial law, to ensure that “gentlemen” and commoners alike contributed equally to the raising and hunting of food. Despite his efforts, the winter of 1609-10 became known as the “Starving Time.”

In an attempt to breathe new life into the colony, by then hanging on by a thread, a new charter was granted in May 1609. The new charter included a provision that the colony would now extend from “sea to sea,” a gesture which provided no help to the beleaguered settlers. The charter established a new corporation and a new governing council in London that became the permanent administrative body of the corporation. A new governing council was created at Jamestown as well. A “Governour” was given extensive powers including the right to enforce martial law, if necessary.

By 1612, things were beginning to turn around. Numerous replenishments of supplies and manpower accompanied by a tenuous peace with the local natives had turned the settlement into a profitable and growing venture. A new, third charter was granted that year, extending Virginia’s jurisdiction eastward from the shoreline to include islands such as Bermuda. New settlers were each granted 100 acres of land.

On Friday, July 30, 1619, the newly appointed Governor, Sir George Yeardley set in motion the concept of self-government in the colony. Under instructions from the Virginia Company, he called forth the first representative legislative assembly in America, establishing “the oldest continuous law-making body in the New World,” Virginia’s House of Burgesses (today, the Virginia Assembly). The group convened in the colony’s largest building, the Jamestown Church “to establish one equal and uniform government over all Virginia” which would provide “just laws for the happy guiding and governing of the people there inhabiting.” The Governor, six men forming a Council of State, and, initially, twenty burgesses, two from each of ten settlements — “freely elected by the inhabitants thereof” — prepared to get underway.

An eleventh settlement, that of Captain John Martin, was not immediately allowed seats. A clause in Martin’s land patent exempted his plantation from the authority of the colony.[1] There would thus be little point in including him as a Burgess; any laws he participated in creating would not apply to his own settlement. A secretary, (former member of Parliament John Pory) and a Clerk (John Twine) were quickly appointed to their positions. Prayer was offered by Reverend Richard Buck: that “it would please God to guide and sanctifie all our proceedings to his owne glory and the good of this Plantation.”

An oath was then administered to all present The Oath of Supremacy, first established in 1534, required any person taking public or church office in England to swear allegiance to the English monarch as Supreme Governor of the Church of England. Roman Catholics who refused to take the oath were dealt with harshly. In April 1534, advisor to King Henry Sir Thomas More had refused to take the oath. He was imprisoned, tried for treason, and despite his close relationship with the King, beheaded the following year. Oaths, at least back then, were serious stuff.

The ten settlements represented that day in 1619 included “James Citty, Charles Citty, Henricus, Kiccowtan, Smythe’s Hundred, Martin’s Hundred (a different Martin than John Martin), Argall’s Guiffe, Flowerdieu Hundred, Captain Lawne’s Plantation and Captaine Warde’s Plantation.”

The lead representative of Warde’s Plantation, none other than Captain Warde himself, was immediately challenged by another Burgess as having settled in the colony without proper authority from the Company in England. But due to the great efforts Warde had made towards the colony’s success, particularly in bringing in “a good quantity of fishe,” he and his lieutenant were allowed to take their seats.

Once again, the Burgesses turned their attention to the issue of Captain John Martin’s two representatives. After a review of Martin’s patent it was decided that the two Burgesses-in-waiting should leave until such time as Captain Martin himself appeared to discuss the matter. But the assembly was not quite done with Martin. The Burgesses were next presented with a complaint that an Ensign Harrison, under Martin’s employ, had forcibly taken corn from Indians who had refused to sell to him, leaving the Indians with some “copper beades and other trucking stuffe.” The Indians had complained to Chief Opchanacanough, who had complained to Governor Yeardley. False dealing with the Indians was a serious offense; the shaky, on again, off again peace with the various Indian tribes was fragile, easily broken. It was ordered that Captain Martin appear before the Burgesses forthwith. The order to appear began: “To our very loving friend, Captain John Martin, Esquire, Master of the ordinance.” Martin’s last title in the salutation might explain the gentle tone taken.

Next, the “greate Charter, or commission of privileges, order and laws,” sent from England in four books, was presented. It was decided that two committees would be commissioned to review the first two of the books to see if they contained anything “not perfectly squaring with the state of this Colony or any lawe which did presse or binde too harde, that we might by waye of humble petition, seeke to have it redressed.” The two committees gave their reports the following day.

The Burgesses composed six petitions to send to the Council in England. The first four dealt with administrative matters; the fifth asked the Council’s permission to build “a university and colledge” in the colony. This “colledge” would eventually be named Henricus College, which today lays claim to being the oldest college in North America. It’s primary purpose? To educate the natives. The sixth petition asked permission to rename Kiccowtan settlement.[2]

The next day, Sunday, August 1, one of the Burgesses, a Mr. Shelley, died unexpectedly.

On Monday, August 2nd, the infamous Captain Martin appeared before the Burgesses. He was asked whether he would disavow the stipulation in his patent that his settlement would be exempt from the established laws. He would not. Whereupon the assembly voted that his settlement’s representatives not be admitted. As to the charge that his employees had unfairly dealt with the natives, Martin acknowledged the charges as true and said he would put up a security bond to ensure it would never happen again.

The issues with Captain Martin thus settled, the Burgesses set about to make some laws (why not?)

Laws against idleness, gaming, drunkenness and “excesse in apparel” were enacted. Settlers caught gaming at “dice and Cardes,” the winners at least, would forfeit their winnings; all the players would be fined “ten shillings a man.”

Not forgetting one of the main reasons for the settlement: the “propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God,”[3] each settlement was to obtain “by just means” a number of the native children who would be educated by the settlers “in true religion and civile course of life.”

Each settler was required to plant six mulberry trees each year for seven years.

On Tuesday the 3rd of June, more laws.

On Wednesday the 4th of June, with many of his assembly coming down with malaria, Governor Yeardley decided that was enough for this session of the Burgesses and adjourned this first experiment in self-government. Many challenges lay ahead. While the 1619 House of Burgesses proved a turning point in the governing structure of Virginia; but it did not end the economic difficulties brought on by crop failures, war with the Indians, disputes among factions and bad investments.

For instance, after several years of strained coexistence, Chief Opchanacanough and his Powhatan Confederacy decided to eliminate the colony once and for all. On the morning of March 22, 1622, he and his men attacked the outlying plantations and communities up and down the James River in what became known as the Indian Massacre of 1622. More than 300 settlers were killed, about a third of the colony’s population. The fledgling developments at Henricus and Wolstenholme Towne, were essentially wiped out. Jamestown was spared only by the timely warning of a friendly Indian.  Of the 6,000 people known to have come to the settlement between 1608 and 1624, only 3,400 would survive.

In 1624, King James I finally dissolved the Virginia Company’s charter and established Virginia as a royal colony. In 1776, when the Fifth Virginia Convention declared its independence from Great Britain and became the independent Commonwealth of Virginia, the House of Burgesses was renamed the House of Delegates, which continues to serve as the lower house of Virginia’s General Assembly to this day.

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] Martin had been a member of the original Ruling Council; how he had received such a unique patent has not been explained.

[2] It would eventually be renamed Elizabeth City, site of the present day Hampton, Virginia.

[3] Found in the First charter of 1606

Guest Essayist: Tony Williams

In the early seventeenth century, gentlemen adventurers and common tradesmen voyaged to Jamestown and established the first permanent English settlement in North America. They were free and independent Englishmen who risked their lives and fortunes to brave the dangers of the New World for personal profit and the glory of England.

The settlement was part of the grand national political, economic, and religious European struggle for imperial preeminence. Unlike their Spanish counterparts who received official financial backing, the enterprising individuals created an entrepreneurial joint-stock company.

In 1606, John Smith and other wealthy adventurers and merchants organized the Virginia Company and received a royal charter to colonize the territory. They were promised the rights of Englishmen “as if they had been abiding and born within our realm of England.” The crown charged them with the religious purpose of spreading the Protestant faith to the Native Americans. While primarily interested in getting wealthy from gold and silver and the discovery of the fabled Northwest Passage to Asia, the company received rights to the commodities it found.

Almost 150 adventurers and sailors crossed the Atlantic in a harrowing voyage that took some five months. They sailed on the Susan Constant, Godspeed, and Discovery. They suffered a variety of contrary winds and storms that impeded their progress and caused tensions to escalate aboard the ships. The contentious John Smith ran afoul of the leaders of the armada and was clapped in chains and nearly hanged in the Caribbean.

The ships finally sighted Virginia and over the next few days went ashore where they erected a cross, encountered several groups of Indians who alternatively attacked and traded with them, and explored the James River. On May 14, 1607, they disembarked at Jamestown because they thought it bountiful and defensible against expected Spanish attacks. The instructions from the company were opened and the appointed leaders of the colony—including John Smith—were sworn into their offices.

While they had several peaceful trading encounters with the local Indians, the settlers suffered a large, deadly attack a few weeks later and decided to build a fort. That was only the beginning of the colony’s troubles. That summer, most of the company was sickened by drinking brackish water from the tidal James. They suffered a variety of maladies including salt poisoning, typhoid fever and dysentery. The settlers were mostly too sick to work or plant food. However, the gentlemen leaders of the colony believed that the colonists were being lazy. Moreover, disputes among the councilors resulted in the imprisonment of President Edward Maria Wingfield. The colony was in chaos.

The remedy was worse than the problems the colony faced. The leaders imposed draconian laws on the settlers, and Smith forced men to work or suffer punishment. The settlers did not enjoy the rights of Englishmen they were promised. They also had very little incentive to work because they did not own land or the fruits of the labor as they toiled for the company and consumed food from the common storehouse. They also completely depended on the goodwill of the Indians for food through trade or coercion at gunpoint.

The situation over the next few years did not improve because the colony was still governed poorly and based upon the wrong incentive structure. They depended upon regular resupply from England but sent scant precious metals or valuable raw materials back to England.

In 1609, the company dispatched a fleet of ships with 500 settlers and supplies led by the flagship, Sea Venture. A massive hurricane dispersed the fleet and sank the Sea Venture near Bermuda with the admiral of the fleet, the new president of the colony, its instructions, and most of the supplies destined for Jamestown. The shipwrecked survivors were stranded there for nearly a year.

Meanwhile, in Jamestown, the rest of the fleet had arrived with hundreds of tempest-tossed settlers but few supplies. In addition, people tired of John Smith, and he barely survived an assassination attempt and departed the colony. With the dearth of food and the leadership vacuum, the winter of 1609-1610 became known as the “Starving Time.” Desperate colonists ate rats, dogs, and snakes, and resorted to trying to eat leather goods and even each other. The colony was hanging by a thread.

In May 1610, Gates and the Bermuda castaways finally arrived in Jamestown but quickly decided to return to England before all starved to death. As they were sailing down the James, they encountered another supply fleet bringing the new governor, Lord De La Warr, who ordered the colonists to return to Jamestown. The governor attempted to rebuild the colony through the same methods that had failed the colony to date: martial law, harsh discipline, forced work, and communal ownership.

The colony barely survived over the next few years even with the arrival of tons of supplies and additional settlers to make up for the horrific death toll. Even the planting of tobacco did not fundamentally alter the structure of the colony or facilitate lasting success as commonly assumed.

Only in 1616 and 1617 did the colony find the path to permanent success and prosperity in Jamestown. The introduction of private property gave colonists the right incentive to grow crops including food and tobacco to sustain themselves. Moreover, the company finally guaranteed the traditional rights of Englishmen rooted in the common law including liberties and trial by jury. Most importantly, in 1619, the House of Burgesses—the first representative legislature in America—was created for just laws and good government.

Jamestown began to thrive over the next few years as opportunity beckoned despite the still frighteningly high death rate from disease. Approximately 4,000 settlers migrated to Virginia for greater opportunity. Women finally arrived in large numbers to support families and a lasting colony. The first Africans arrived in 1619 and had a largely obscure status until slavery was codified over the next several decades.

The settlement of Virginia had entrepreneurial origins that developed only in fits and starts and after almost a decade of failure. The introduction of private property, freedom, self-government, and a capitalist ethos laid the foundations of a successful colony and shaped the colonists’ thinking. Those ideals rested uneasily with the development of slavery, and this contradiction of slavery and freedom would continue for more than two centuries. However, the founding ideals of America were established along the James in Virginia.

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

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Guest Essayist: Wilfred M. McClay

We Americans need to know our history. And we need to know it far better than we have in the past. We are not a people bound together primarily by blood and soil. Instead we are people with our origins in many bloods and many soils, linked by shared principles embodied in shared institutions, and embedded in a shared history, with its shared triumphs and shared sufferings. There is a growing danger that we have been failing to pass along that flame to our posterity, with untold consequences. We have neglected an essential element in the formation of good citizens when we fail to provide the young with an accurate, responsible, and inspiring account of their own country – an account that will inform and deepen their sense of identification with the land they inhabit and equip them for the privileges and responsibilities of citizenship.

“Citizenship” here encompasses something larger than the civics-class meaning. It means a vivid and enduring sense of one’s full membership in one of the greatest enterprises in human history: the astonishing, perilous, and immensely consequential story of one’s own country. That’s what the study of American history should provide.

We need this knowledge for the deepest of all reasons. For the human animal, meaning is not a luxury; it is a necessity. Without it, we perish. Historical consciousness is to civilized society what memory is to individual identity. Without memory, and without the stories by which our memories are carried forward, we cannot say who, or what, we are. A culture without memory will necessarily be barbarous and easily tyrannized, even if it is technologically advanced. The incessant waves of daily events will occupy all our attention and defeat all our efforts to connect past, present, and future, thereby diverting us from an understanding of the human things that unfold in time, including the paths of our own lives. The stakes were beautifully expressed in the words of the great Jewish writer Isaac Bashevis Singer: “When a day passes it is no longer there. What remains of it? Nothing more than a story. If stories weren’t told or books weren’t written, man would live like the beasts, only for the day. The whole world, all human life, is one long story.”

Singer was right. As individuals, as communities, as countries: we are nothing more than flotsam and jetsam without the stories in which we find our lives’ meaning. These are stories of which we are already a part, whether we know it or not. They are the basis of our common life, the webs of meaning in which our shared identities are suspended. Just as we need meaning, so we need a sense of belonging. Without them we cannot flourish. The pathologies that we see creeping steadily into our national life—rise in suicides, youth depression, alcoholism, drug abuse, and astonishingly an overall decline in life expectancy—how can these not be related to a catastrophic loss of meaning, a sense of disconnected from others, and from the great story to which, by all rights, every American belongs?

I wrote the book Land of Hope to try to begin to redress this problem, to be a fresh invitation to the American story. It does not pretend to be a complete and definitive telling of that story. Such an undertaking would be impossible in any event, because the story is ongoing and far from being concluded. But what it does try to do is present the skeleton of the story, its indispensable underlying structure, in a form particularly appropriate for the education of American citizens living under a republican form of government. There are other ways of telling the story, and my own choice of emphasis should not be taken to imply that the other aspects of our history are not worth studying. On the contrary, they contain immense riches that historians have only begun to explore. But one cannot do everything all at once. One must begin at the beginning, with the most fundamental structures, before one can proceed to other topics. The skeleton is not the whole of the body – but there cannot be a functional body without it.

Permit, in concluding to say a word about my choice of title, Land of Hope, which forms one of the guiding and recurrent themes of the book. As the book argues from the very outset, the western hemisphere was largely inhabited by people who had come from elsewhere, unwilling to settle for the conditions into which they were born and drawn by the prospect of a new beginning, the lure of freedom, and the space to pursue their ambitions in ways their respective Old Worlds did not permit. Hope has both theological and secular meanings, spiritual ones as well as material ones. Both these sets of meanings exist in abundance in America. In fact, nothing about America better defines its distinctive character than the ubiquity of hope, a sense that the way things are initially given to us cannot be the final word about them, that we can never settle for that. Even those who are exceptions to this rule, those who were brought to America in chains, have turned out to be some of its greatest poets of hope.

Of course, hope and opportunity are not synonymous with success. Being a land of hope will also sometimes mean being a land of dashed hopes, of disappointment. That is unavoidable. A nation that professes high ideals makes itself vulnerable to searing criticism when it falls short of them – sometimes far short indeed, as America often has. We should not be surprised by that, however; nor should we be surprised to discover that many of our heroes turn out to be deeply flawed human beings. All human beings are flawed, as are all human enterprises.

What we should remember, though, is that the history of the United States includes the activity of searching self-criticism as part of its foundational makeup. There is immense hope implicit in that process, if we go about it in the right way. That means approaching the work of criticism with constructive intentions and a certain generosity that flows from the mature awareness that none of us is perfect and that we should therefore judge others as we would ourselves wish to be judged, blending justice and mercy. One of the worst sins of the present – not just ours but any present – is its tendency to condescend toward the past, which is much easier to do when one doesn’t trouble to know the full context of that past or try to grasp the nature of its challenges as they presented themselves at the time. My small book is an effort to counteract that condescension and remind us of how remarkable were the achievements of those who came before us, how much we are indebted to them.

But there is another value to the study of American history. Many Americans, including perhaps a majority of young people, believe that the present is so different from the past that the past no longer has anything to teach us. This could not be more wrong. As I say in the book’s epigraph, borrowing from the words of John Dos Passos:

In times of change and danger when there is a quicksand of fear under men’s reasoning, a sense of continuity with generations gone before can stretch like a lifeline across the scary present and get us past that idiot delusion of the exceptional Now that blocks good thinking. That is why, in times like ours, when old institutions are caving in and being replaced by new institutions not necessarily in accord with most men’s preconceived hopes, political thought has to look backwards as well as forwards.

With the grounding provided by a sense of history, we need never feel imprisoned by the “idiot delusion of the exceptional Now,” or feel alone and adrift in a world without precedents, without ancestors, without guidelines. But we cannot have that grounding unless it is passed along to us by others. We must redouble our efforts to make that past our own, and then be about the business of passing it on.

This year’s Constituting America study is going to be particularly valuable in this regard, since it revolves around the study of particular moments in the American past when something highly consequential was decided. Dates, you say? What could be more boring? Ah, but we sometimes forget, to our detriment, that nothing in history is predetermined, and no outcome is pre-assured. History can turn on a dime, in a single moment, on a single date, and that’s why dates matter.

History is all about contingency, about the way that our positive outcomes depend not only on our big ideas but on our actions, our character, our courage, our determination—and on our good fortune, on forces beyond our control that somehow have seemed to work together for our good. Some people call this “good fortune” Providence. The American Founders certainly did. See if you don’t agree that they were on to something, when you hear the stories to come. They will make you think twice when you hear about “the blessings of Liberty” which our Constitution was designed to secure.

Wilfred M. McClay is the G. T. and Libby Blankenship Chair in the History of Liberty at the University of Oklahoma, and the Director of the Center for the History of Liberty. In the 2019-20 academic year he is serving as the Ronald Reagan Professor of Public Policy at Pepperdine University’s School of Public Policy. He served from 2002 to 2013 on the National Council on the Humanities, the advisory board for the National Endowment for the Humanities, and is currently serving on the U.S. Semiquincentennial Commission, which is planning for the 250th anniversary of the United States, to be observed in 2026. He has been the recipient of fellowships from the Woodrow Wilson International Center for Scholars, the National Endowment for the Humanities, and the National Academy of Education, among others. His book The Masterless: Self and Society in Modern America won the 1995 Merle Curti Award of the Organization of American Historians for the best book in American intellectual history. Among his other books are The Student’s Guide to U.S. History, Religion Returns to the Public Square: Faith and Policy in America, Figures in the Carpet: Finding the Human Person in the American Past, Why Place Matters: Geography, Identity, and Public Life in Modern America, and most recently Land of Hope: An Invitation to the Great American Story. He was educated at St. John’s College (Annapolis) and received his Ph.D. from Johns Hopkins University in 1987.

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Wyatt Hensley is a 15 year old boy from Joplin, Missouri, who won Best Middle Song in the We The Future contest of 2019. He is a 9th Grader at Joplin High School in Joplin, Missouri. He is involved Student Council, in his Church, theater, and in Boy Scouts. He earned his Eagle Scout in January of 2020.

Dr. Robert Brescia currently serves as a Board Director (Past Chairman) at Basin PBS television, the American Red Cross of the Permian Basin (Past Chairman), the Southwest Heritage Credit Union, and the Salvation Army of Odessa. His experience includes top leadership roles in education, corporate business, non-profit, and defense sectors. He is a sought-after speaker and writer, and a monthly columnist for the American Society for Public Administration’s “PA Times”. Dr. Brescia has also written numerous articles and delivered presentations on leadership. In 2015, the Texas Civil Rights Project recognized him as one of their “Heroes and Leaders”.

Prior to his current responsibilities, Bob served as Executive Director of the John Ben Shepperd Public Leadership Institute in Odessa. At JBS, he created the Crisis Leadership & Learning Center, a world-class, innovative computer-assisted leadership case study simulation center. Prior to those responsibilities, Dr. Brescia served as Chief Executive Officer of the Community Care College System, a multi-campus, privately-owned, for-profit career college in Tulsa, Oklahoma. He was also President and Chief Executive Officer of Saint Joseph Academy, a private, independent 7-12 grade college preparatory institution in Brownsville, Texas. During his business career, Brescia served world-class, Fortune 500 organizations in highly visible operational leadership roles, primarily within the automotive sector. As Executive Vice President and Chief Operations Officer of Transplace, Inc., Frisco, Texas, he was responsible for the operations of an industry-leading, high-technology, software-as-a-service provider. Dr. Brescia also served Volkswagen Group of America as its Chief Logistics Officer.  Before VW, he spent five years as Vice President for Logistics at Michelin North America, the $7 billion U.S. subsidiary of Group Michelin, a global manufacturer and distributor of tires, inner tubes, wheels, and maps & guides. Recruited to the world’s leading tire manufacturer as a logistics expert to craft and execute supply chain redesign and outsourcing of Michelin’s physical distribution network, he led a broad-ranging, global award-winning network optimization initiative. Bob also previously served as a strategist and planner of logistics, distribution, and supply chain solutions supporting automobile manufacturers’ programs including Ford & Jaguar, GM, Chrysler, and VW, as well as many Tier 1 suppliers such as Delphi, Dana, Lear, Visteon, and Textron. In 2004, Bob was voted by his peers as one of the Top Five logisticians in North America.

Brescia has twenty-seven years of public service as an Airborne Ranger Cavalry soldier, NCO, and commissioned officer in the United States Army. He has exercised leadership in global logistics under the most arduous of conditions including deploying a cavalry troop unit from Germany to the Desert Storm Theater of operations during the Persian Gulf War.  Bob is a graduate of the Army War College and the Command & General Staff College, as well as many other military schools.  His qualifications and awards include the U.S. Army Ranger Tab, Airborne qualification, the Department of the Army Staff Identification Badge, two citations of the Legion of Merit, four awards of the Meritorious Service Medal, the Southwest Asia Service Medal, the Kuwaiti Liberation Medal, and the Silver Rose.

He received a Bachelor of Arts Degree (summa cum laude) in Government from Norwich University, Vermont in 1977 where he graduated first in his class.  He holds two Master’s Degrees from Boston University: A Master of Arts in International Relations (MAIR) and a Master of Science in Computer Information Systems (MSCIS).  Bob was selected and participated in the George and Carol Olmsted Foundation Scholarship program in 1984, attending the University of Paris IV (Sorbonne) and the University of Strasbourg, France.  While in France, Brescia’s academic curriculum included French and European history, political science, international relations, and European Community law.  He earned a Diplôme d’ Etudes Approfondies from the University of Strasbourg and a Diplôme de L’Institut, European Institute of Advanced Studies, Strasbourg.  Dr. Brescia graduated with distinction from the Executive Leadership Doctoral Program with the George Washington University. Such a distinction has only been given to four other graduates of the program in its twenty-five year history.

As part of his Olmsted Scholarship duties, he worked for President Reagan’s White House team for his visits to France during the period 1984-86. He later served on President Bill Clinton’s Presidential Inauguration Commission in Washington D.C. Dr. Brescia is fluent in French and has an extraordinary knowledge of the French and European culture.  During his two years in Europe as an Olmsted Scholar, he delivered many speeches and presentations on behalf of the Departments of State and Defense, most notably in conjunction with the 40th commemoration of the WWII Normandy beachings, often working with the White House Staff, CIA, and Secret Service.  Bob’s latest book, Destination Greatness – Creating a New Americanism, is now available on Amazon and is receiving 5-star reviews. He has also authored The Americanism of John Ben Shepperd and Disruptive Power in American Discourse. Bob is a contributing author of the best-seller RFID for Dummies, a well-known guide on Radio Frequency Identification technology. His personal hobbies include reading, restoring jukeboxes, and creating LED light displays for the holiday season. Dr. Brescia is gratefully married to Marianne, the love of his life. They met and married in the Pentagon. He is the person that he is now because she loved him.

Nathan Copeland is a 14-year-old from San Antonio, Texas. He attends STEM Academy at Legacy of Educational Excellence (LEE) High School, where he enjoys entering STEM-related competitions, leading to him going to State Science Fair, placing 2nd overall in SA SMART City Challenge, and winning CivTech SA. He is also interested in the technological sector, as he enjoys creating websites, and is in Cyberpatriots and has presented coding in the Texas Capitol. In his community, he volunteers in places such as Miracle League, Camp CAMP, and his church, which has led to him earning the Presidential Service Award 4 years in a row. Nathan is constantly striving for new discoveries, from inventing new ideas on previous works to competing in various challenges. In his free time, he’s involved in Junior Varsity tennis, playing his violin in the LEE orchestra, and Academic UIL. Nathan aspires to become a businessman or lawyer after college to positively influence his community.

Click Here for Nathan’s winning STEM project – The Revolutionary Constitution Website!

Tova Love Kaplan, 16, is a sophomore at Whitney M. Young Magnet High School, one of Chicago’s most rigorous schools. She currently serves as the National Youth Director for Constituting America and is a three-time winner of the nonprofit’s “We the Future” contest. Her work with Constituting America has lead to incredible experiences at the Department of Education, White House, the United States Capitol, and Fortune 500 companies. Tova is heavily involved in academics, extracurriculars, and social justice causes as her school’s Student Council Student Concerns Chairperson,  News Editor for the school newspaper, Vice President of her school’s Best Buddies International chapter, a co-founder of Bake Sale for Justice’s first student chapter, and a member of the National Junior Honors Society. Tova is a passionate public speaker interviewed frequently by media. She has been spotlighted in the Chicago Tribune, Chicago Sun-Times, CBS2 Chicago, Chicago Magazine, Splash Magazines Worldwide, FOX4’s Good Day Dallas, and recently served as the first ever teen co-host on Windy City Live Tova has been recognized for her contributions to the City of Chicago through the Jewish United Fund’s 18 Under 18 Award and Chicago Parent Magazine’s Kids Who Do Good Award. Tova is a professional actor who has had featured roles at the Lyric Opera of Chicago, Mercury Theater Chicago, the Chicago Symphony Orchestra and Paramount Theatre. Her commercial work includes videos and commercials for Second City Networks, Onion Productions, and the Wisconsin Dells tourism board.

Click Here for Tova’s Winning STEM project – a Constituting America “app”!

Thank you to Mr. and Mrs. William Kohnke for your very generous contribution in loving memory of Bob and Norma Freuer to sponsor our Best High School Song Winner.

Click here to read Mr. and Mrs. Kohnke’s remembrance of Bob and Norma Freuer.

 

Constituting America thanks the following family and friends of Mr. Ervin Monroe Dulaney for their generous contributions in his memory:
  • Suzanne and Noel Schnitz
  • Janice Gauntt
  • Melissa Guthrie
  • Col. and Mrs. Ambrose Szalwinski
  • Mr. and Mrs. Richard “Pete” Burgess, Business Aviation Consultants
Ervin Monroe Dulaney
1926 – 2019
Click Here to view Mr. Dulaney’s Obituary.

Constituting America thanks Janice Gauntt for her generous contribution in honor of Ms. Barbara Awbrey Hardage, to sponsor our Best Song Winner.

Click here for Barbara’s obituary.

Constituting America’s Conrad Ainslie Bauman Elementary School Artwork Award is named after Conrad Ainslie Bauman, age 19 months, who was born on February 22, 2014 and passed away on Wednesday, September 23, 2015 in the loving arms of his parents, Paul and Victoria Bauman after a fervent fight with an extremely rare form of leukemia. Conrad is finally at peace in heaven.  A sweet, precious baby, Conrad was known by his family and friends to be full of joy and smiles. He was friendly to all – a real people person – always waving and blowing kisses to those he knew and those he wanted to befriend. His infectious smile, soft touch and sparkling blue eyes melted hearts. He loved reading with his mother, animals both real and stuffed, airplanes flying in the sky, anything with a loud motor, walks with his parents, rides on golf carts, playing with his cousins and grandparents, and being surrounded by people. Conrad also loved art and artwork. Conrad taught those who knew him to find joy in simple things, to be courageous and to live passionately as everyday is a gift.  Conrad’s mother, Victoria Bauman, has served on Constituting America’s Advisory Board since its inception in 2010, and Victoria has assisted on numerous Winner Mentor Trips over the years. Victoria’s grandparents, and Conrad’s great grandparents, Mr. and Mrs. Martin Hubbard, have generously supported Constituting America since its founding in 2010.   Click here to read Conrad’s full obituary.

 

Thank you to Dorothy Quimby for your generous gift in honor of Mr. James Quimby, your beloved husband.

Click here for James Quimby’s obituary.

Marilyn Brink was one of Constituting America’s first staff. She checked our P.O. Box and made deposits for us from 2010 to early 2019. Marilyn very generously donated most of her Constituting America duties, charging a very minimal fee.

We will never forget Marilyn’s sense of humor and strong work ethic and are grateful for all she helped us achieve over the years.

Thank you Janice Gauntt, for your generous donation in memory of Marilyn to sponsor our Best PSA Winner.

Marilyn Ann Brink
July 31-1950 – January 31, 2019

Click here for Marilyn’s obituary

 

Elyas Masrour is a 17-year-old from Long Island, New York. He attends Ward Melville High School where he participates in various clubs like FIRST Robotics, Environmental Club, DECA Business Competition, and the Muslim Students’ Association. Elyas is a creator at heart. Whether it’s designing a robot, organizing an event, or making a short film, he’s in his element while making something new. In his community, Elyas has become an advocate for Science by making multiple documentaries on different local environmental issues. He’s also won an award for a documentary showcasing cultural diversity through the lens of food. In his free time, Elyas enjoys playing soccer and watching movies.

 

 

Dakare C. Chatman is 16 years old and is a native of Charleston, South Carolina. Dakare attends the Caldwell Early College High School, and is in the eleventh grade. Dakare got his start in theatre. Some of his many roles include Ollie in Yes Virginia, Tiny Tim in A Christmas Carol, Prince Chufa Chulalongkorn in The King and I, Ralphie in A Christmas Story, and Seaweed J. Stubbs in Hairspray. In 2017, he moved into film, Dakare has a commercial which played on the ION TV Station, and 5 billboards thanks to Constituting America. Dakare is on the youth advisory board of Constituting America as well. Dakare was featured in HBO’s The Righteous Gemstones and Netflix’s Outerbanks. Dakare has been public speaking, singing, and acting since the age of 5. Dakare hopes to be a politician during his lifetime, similar to Ronald Reagan, Dakare’s goal is “Actor first, politician later”. Dakare’s life quote is Jeremiah 29:11 “For I know the plans I have for you, declares the Lord, plans to prosper you and not to harm you, plans to give you hope and a future.”

My name is Chibuzor Ernest Onyeahialam and I am a born citizen of the United States with parents that are originally from Nigeria. I go to school at the University of Houston and I am studying computer information systems. I have plans of gaining a career in the computer industry. I have an extreme love for dogs and I love to go to the gym. My thought process behind the PSA was to make a video that would be attention grabbing to people young and old. It took me 2 weeks to get the video to my liking and I am extremely excited that my hard work paid off.

 

 

My name is Daniela Staton. I am a 6th grade honors student and I live in Delray Beach, Florida. I am passionate about singing, songwriting, piano, and playing volleyball and tennis. As libero on my volleyball team, we won first place at the 2020 South Florida Season Opener. At school, my favorite subject is math. Also, I really enjoy art as a way to express my thoughts and feelings; I feel free and focused when I’m creating art. In my free time, I love being with my family, traveling to different places, experiencing different cultures, enjoying adventurous activities such as skiing, hiking, mountain biking, snorkeling, and swimming with dolphins in the wild. I speak some Spanish and Greek and I am learning French at school. I am very thankful for this opportunity and very excited to be a part of Constituting America!

 

 

 

 

 

ALEXANDRA GUSINSKI CV

Alexandra Gusinski, a 12-year-old, residing in Greenwich, Connecticut – is a first-generation American born in Los Angeles, on December 25, 2007. She is of Israeli-Russian descent and is the granddaughter of Russian-Israeli media tycoon, Vladimir Gusinsky.

As a nature and marine life enthusiast, at age ten she received her Junior PADI Open Water Scuba Diver certification – she spends hours exploring the sea, only to later spend hours reading and researching the flora and fauna that she just saw. By age 11, she has already been shark-feeding, cave diving, and night diving.

Academically accomplished, at age 11, she joined the Johns Hopkins University Center for Talented Youth (CTY). She has broad interests ranging from performing and studio arts to social activism and global studies. During her summer breaks, she enjoys taking enrichment courses and travels to explore new places and learn about different cultures.

Alexandra has the 1st Dan black belt in Tae Kwon Do Korean martial art and enjoys self-defense combat training and sparring sessions, she competed in the 14th U.S. Masters Taekwondo Open Championships 2019 in Massachusetts and won first place in sparring and board breaking.

Alexandra is an advanced Jazz, Ballet and Hip-Hop dancer at the Greenwich Dance Studio and performed with her dance group at The Performing Art Center in Purchase, New York.

She enjoys horseback riding – she rides on the weekends near her house and participates in equestrian riding competitions in her hometown. During the winter season, she likes to ski and ice skate.

In 4th grade, as a consequence of her cultural trip to explore France with her mother, her interest in knowing more about the world’s social issues grew. Walking down the streets of Paris, Alexandra witnessed first-hand the Syrian refugee crisis in Europe. Upon her return home, she engaged in independent research so that she could talk about this issue in her school and present ideas of how kids could help. Her school’s newsletter praised Alexandra for her social activism.

The summer after graduating from 5th grade, she visited the United Nations headquarters in NY, and soon after joined the ‘Model UN and Advanced Geography’ three- week intensive summer camp by John Hopkins University Center for Talented Youth (CTY). She is a passionate debater who cares about human rights and animal rights.

Alexandra attended Whitby Montessori Private International Baccalaureate School from age two, for ten years, and transferred in 6th grade to KING Private school. Walking in school corridors, Alexandra carries her sketchbook with her everywhere she goes. While in 6th grade, she is the youngest person to attend the 8th grade Math Honors program in her school. She is the head of the newspaper club and enjoys exploring the visual arts, writing, filming, directing, and video editing.

At age 12, Alexandra won the Constituting America National Award for her Public Service Announcement on the First Amendment that she animated, written, and produced by herself.

Alexandra was chosen to be a member of the Youth Advisory Board of Constituting America, a group founded by Janine Turner and co-chaired with Cathy Gillespie, dedicated to teaching students and adults across America about the nonpartisan relevancy of the U.S. Constitution and the principles of self-governance inherent in our founding documents.

 

My name is Larissa Nicolas and I am currently attending Charles R. Drew University of Science and Medicine. My ultimate educational goal is to attend medical school and also obtain my masters in Public Health. I want to become a physician and work in underserved communities to advocate for patients that may not have the tools to advocate for themselves. I hope to use my bilingual skills to furthermore bridge the gap between Spanish speaking patients and medical staff. 

Click Here to take quiz!

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If one looks at a map of the United States, a map that differentiates land into who owns that land—privately owned, owned by state or local governments, or owned by the federal government, one might notice something incredibly interesting:

The further west one goes, the more land retained in ownership by the federal government.  In fact, from the Rocky Mountains westward (essentially, any states that became states after the United States signed the Treaty of Guadalupe Hidalgo in 1848), it is clear that, as a percentage of land, the United States government exercises enormous dominion:

And let us keep in mind that since this map is not to scale, Alaska’s size is under-represented—as seen here:

So, taking the first map and this one together, and understanding that Alaska is 60% federally-owned, it is clear that the federal government owns an enormous amount of land in the United States—much of it brought into the nation in the middle of the 19th Century.

But was the federal government ever intended to maintain permanent ownership of this land?  Certainly, as the Constitution originally envisioned, the federal government was only supposed to own very discrete parcels of land, and retain ownership of that land for very specific purposes – as described in Article IV, Section 3, Clause 2.

The 5th Amendment also talks about the “taking” of private property (as differentiated from the out-and-out purchase of that land from other nations, or the gaining of territories via treaty), but is informative as to the why of land acquisition.  Private property is to be “taken” for “public use” (and necessitating the both “due process” be accorded to the property owner, and “just compensation” be paid once the first two conditions are satisfied).

But the language about “public use” is informative – the federal government is only supposed to acquire lands for public uses (though that definition has shifted over time).

The central question is then raised: was it intended for the federal government to maintain permanent ownership or control over these lands, and did the federal government promise these western states that it would divest itself of these lands over time?

It is a question that has never been adequately answered—and no state has undertaken the necessary litigation to settle the underlying question.

What is clear is this: when states entered the Union (converting their status from federally-owned territories to become sovereign states), that happened via “Enabling Acts” negotiated by the territorial governments and then passed as legislation by Congress.  In every state that entered the union after the Treaty of Guadalupe Hidalgo, each enabling act contained some variation of language in which the state set-aside any claim to the title of “unappropriated public lands” within that state—and that the federal government would dispose of those lands.

Take the 1864 Nevada Enabling Act, for example.  In Section 3, the state “disclaims” all right and title to these lands.  But then, in Section 10, the agreement is as follows:

“That five percentum of the proceeds of the sales of all public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union, after deducting all the expenses incident to the same, shall be paid to the said state…”

The “Shall” clause of that sentence makes it clear that the federal government undertook an obligation to dispose of those lands “subsequent to the admission” of Nevada into the Union (with Nevada gaining 5% of the proceeds from those sales).

Incidentally, the reason for this trade-off was a product of good public policy: these states wanted to be settled in the easiest and least chaotic manner possible.  An essential element of that was ensuring that unappropriated public lands had “clear title”—a situation discussed at length in Peruvian economist and political scientist Hernando DeSoto’s seminal work, “The Mystery of Capital.”

In that work, DeSoto makes it clear that in order to have a stable and prosperous society, strong property rights are a fundamental necessity.  A key aspect of that is the assurance title is clear—thus allowing property to be bought and sold with ease.

“Shall,” as the word was used in these enabling acts, had a very specific meaning especially at the time these enabling acts were written and passed.  It was both a “command” on the part of the legislature, and it created a “duty” on the part of the federal government to engage in the activity evinced by the “shall” language.

And for a very long time, the federal government was in the business of fulfilling these obligations by disposing of these lands.

This changed with the passage of the Federal Land Policy and Management Act of 1976 (FLPMA).  FLPMA flipped this obligation on its head—and instead of the “duty to dispose,” the federal government now had an “obligation to retain” these public lands in perpetuity.

This has had enormous consequences for the United States… and the specific states which contain these enormous amounts of public lands, both from a fiscal perspective and from a general public policy perspective. This FLPMA represented a fundamental departure from the agreements upon which these states entered the Union.

Andrew Langer has served as President of the Institute for Liberty since 2008. IFL works on a variety of issues—promoting and protecting small business, fighting cronyism, tilting against the regulatory state.  At the core of both is the desire to promote freedom and individual rights.  Andrew has been involved in free-market and limited-government causes for nearly 20 years, has testified before Congress nearly two dozen times, and has spoken to audiences across the United States.

A nationally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the problem of burdensome regulatory state.  Prior to coming to IFL, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association.  He is also a nationally-recognized expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

In the Fall of 2019, Andrew joined the faculty of The College of William & Mary in Williamsburg, Virginia, the nation’s second-oldest college (his alma mater).  He teaches on the regulatory state in the university’s Public Policy Program.

In addition to being IFL’s President, he also hosts a weekly show on WBAL NewsRadio 1090, Maryland’s largest news/talk station, appears regularly on television and other radio programs, and has guest-hosted on both nationally-syndicated terrestrial radio programs like “The Laura Ingraham Show” and shows on satellite radio.

In 2011, he was named one of Maryland’s “Influencers” by Campaigns and Elections magazine.  He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations. He may be reached via: www.IChooseLiberty.org, @Andrew_Langer & @IChooseLiberty on Twitter; https://www.facebook.com/LangerForLiberty; or https://www.facebook.com/AndrewLangerShow.

Guest Essayist: Will Morrisey

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On September 19, 1796 George Washington published his Farewell Address. Best remembered now for its warning against American embroilment in European wars, the Address centers on what Washington considered a far more important and urgent question: the need to maintain the American union.

That union, he wrote, provides “a main pillar in the edifice of your real independence.” Americans’ tranquility at home, peace abroad, safety, prosperity, and liberty all require the continued union of the American states. “This is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed.” In a world of powerful, militarized and centralized modern states, several in command of vast empires, “no alliances, however strict, between the parts” of America “can be an adequate substitute.” Internally, factionalism, the “party spirit”—“itself a frightful despotism,” likely fanned by “the insidious wiles of foreign influence”—can eventually lead to a regime of tyranny, the last resort of a republican people desperate for protection from both domestic and international threats. Therefore, “The name of American, which belongs to you in your national capacity, must always exalt the just pride of patriotism more than any appellation derived from local discriminations.”

As both the leading general in the Revolutionary War against just such an empire and the first president under the United States Constitution, Washington had experienced what eighteenth-century writers termed the “inconveniences” of disunion for the past twenty years. From his difficulties in recruiting and paying the Continental Army to the machinations of French ambassador Edmond Genêt on behalf of the Jacobin regime, Washington had seen how selfish interests and mutual distrust could threaten his country’s still-fragile, controversial experiment in popular self-government.

In this, he had allied with his Treasury Secretary and former Army officer Alexander Hamilton, not only on the battlefield and in his administration, but in the crucial years 1787-91 when the United States Constitution was framed, debated, and ratified. Themes Washington succinctly invoked in the Farewell Address had already been elaborated by Hamilton in The Federalist.

Hamilton begins by alerting his readers to dangers Americans face from “dissensions between the states.” Among sovereign states, God’s command to ‘Love thy neighbor’ does not predominate. Quite the opposite: Hamilton considers it “a sort of axiom in politics that vicinity, or nearness of situation, constitutes nations’ natural enemies.” This is so because human nature isn’t divine. One must never “forget that men are ambitious, vindictive, and rapacious”; their unlovely passions direct themselves against those who are nearest to hand. Thus “the causes of hostility among nations are innumerable.” They include both “the love of power or the desire of pre-eminence and dominion” and “the jealousy of power, or the desire of equality and safety.” Trade wars often lead to shooting wars.

Nor do national passions limit themselves to public ambitions and grievances. Many national rivalries “take their origin entirely in private passions,” in the “attachments, enmities, interests, hopes and fears of leading individuals in the communities of which they are members”: love affairs, criminal activity, vanity, religious bigotry, even indebtedness.

More often, however, the causes of war are less petty. Sovereign states fight over territory; given America’s “vast tract of unsettled territory” in the west, this could easily become a source of conflict—as indeed it did, by the 1850s. With existing jealousies and fears of larger states by smaller states under the existing Articles, border disputes “would be likely to embroil the States with each other, if it should be their unpropitious destiny to become disunited.” The public debt of the Union, like the private debt of Shays, “would be a further cause of collision between the separate States or confederacies,” as “foreign powers would urge for the satisfaction of their just demands, and the peace of the States would be hazarded to the double contingency of external invasion in internal contention.” Finally, “incompatible alliances between the different States, or confederacies, and different foreign nation,” would cause us to “be gradually entangled in all the pernicious labyrinths of European politics and wars”—Washington’s famous future argument—as “Divide and conquer must be the motto of every nation that either hates or fears us.”

Hamilton especially needs to argue against the argument made by Montesquieu and other writers that commercial republics won’t fight each other. Applied to the United States, this would mean that the American states don’t need a more perfect union to sustain peace amongst themselves because they are all commercial republic. Here, Hamilton engages in some adroit rhetorical sleight-of-hand, although for a good purpose. He first argues by counter-example.  Republics often make war, no less than monarchies. “Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities?” No doubt they are. And “has commerce hitherto done any thing more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power or glory?” Surely not, and assuredly so, respectively. He then observes that “Sparta, Athens, Rome, and Carthage were all republics; two of them, Athens and Carthage, of the commercial kind. Yet were they as often engaged in wars, offensive and defensive, as the neighboring monarchies at the same times.” And in modern times, the “haughty republic” of Venice often made war on its neighboring states, and the commercial republics of Holland and Britain fought a series of wars against each other.

These arguments are easy to disprove. The two commercial republics of antiquity, Athens and Carthage, didn’t war against each other, except when Athens became a subordinate ally of a Syracusan tyrant. As for Holland and Britain, the Dutch Republic was a republic in name only—a federation, to be sure, but one ruled by kings and trading oligarchs; even Britain, during the time of the wars with the Dutch, was at best a mixed-regime republic, with monarchs not Parliament conducting its foreign policy. Why these sophistries? What justifies them?

What Hamilton knew, as did his political ally James Madison, was that many of the Southern states were not democratic republics at all. Both men had heard Gouverneur Morris chide the representatives of those states at the Constitutional Convention. You are slaveholding, plantation oligarchs, not real republicans, Morris said, and even Madison, himself a slaveholding, plantation oligarch, understood this, while hoping for gradual abolition of slavery and consequent political reform in Virginia and throughout the South. If not all the American states are commercial republics, the republic peace theory does not apply. This is the unspoken truth behind Hamilton’s verbal legerdemain.

Having established (directly or indirectly) the several causes of disunion, were the American Union to divide, Hamilton turns to the consequences, the effects those causes would bring down upon us. Whereas in Europe the disciplined armies and fortified borders of its many sovereign states have “been productive of the signal advantage of rendering sudden conquests impracticable,” in “this country the scene would be altogether reversed,” as wars would consist, first, of the “populous States” overrunning their “less populous neighbors,” followed by guerrilla warfare which will make such conquests “difficult to be retained.” Hamilton is thinking of the many instances of exactly such warfare, on both sides, during the recently concluded Revolutionary War. Even the Civil War, decades later, saw the conquest of the South by the more populous North, only to be followed by simmering hit-and-run resistance, including terrorism, by irregular forces led by Nathan Bedford Forrest, to take only the most prominent example.

Such chronic insecurity will lead to standing armies, and then to the undermining of republicanism throughout America. Armies, after all, require executive direction; American constitutions “would acquire a progressive direction towards monarchy,” “at the expense of the legislative authority.” Not only republicanism but commerce would thereby attenuate, as “the industrious habit of the people of the present day, absorbed in the pursuits of gain and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers,” as such circumstances would require Americans to become. To those who would cite Great Britain as a counterexample, as a nation that has fought many wars without succumbing to military rule (except for the brief reign of Oliver Cromwell, in the previous century), Hamilton reminds them that they are thinking of the British Isles–islands, moreover, protected by the most formidable navy on earth. America, too, has long coastlines, but is largely a continental power, and will become more so as it expands westward.

In sum, history teaches that small-scale republics, clustered together, spell calamity for the peoples so divided. “It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of evolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy.” The “transient and fleeting brilliancy” of the Age of Pericles and of Renaissance Italy cannot compensate for “the vices of government” that “pervert[ed] the direction and tarnish[ed] the luster of those bright talents and exalted endowments” displayed there. Further, “From the disorders that disfigure the annals of those republics the advocates of despotism have drawn arguments, not only against the forms of republican government, but against the very principles of civil liberty,” arguments enabling such advocates to condemn “all free government as inconsistent with the order of society.”

Confident that he has drawn his readers’ attention to the dangers, causes, and consequences of disunion, Hamilton defends the Framers’ solution: a republican regime and federal state with strong but limited powers. Respecting republicanism, “the science of politics… like most other sciences, has received great improvement” in modern times. Division of powers, checks and balances, judges holding office during good behavior, and perhaps above all “the representation of the people in the legislature by deputies of their own election” are “wholly new discoveries, or have made their principal progress towards perfection in modern times.” Respecting the modern state, it has replaced small, weak political communities with large and powerful ones, but more: With the invention of federalism, it has enabled Americans to combine the self-defense only possible in a large place that organizes numerous soldiers and sailors in a manner permitting coherent military operations, with sufficient revenues to keep them well-armed. Crucially, as Montesquieu argues in his magisterial work, The Spirit of the Laws, a “confederate republic” will enable Americans to extend “the sphere of popular government” at to “reconcile[e] the advantages of monarchy”—effective command of well-trained and organized troops—“with those of republicanism”—economic, political, and religious liberty. Such a state, and such a regime, will not only defend itself against foreign enemies but also against “popular insurrection” within, as a beleaguered governor of one state will be entitled to call in assistance from other states, all under the eye (and, more to the point, the authority) of the federal government.

Within that federal government itself, the states will retain representatives. The Senate, elected by the state legislators, will leave the states in possession of “certain exclusive and very important portions of sovereign power,” although not in possession of sovereign power tout court. Hamilton cites the example of the ancient Lycian confederacy, which successfully combined self-defense, representation of each of its constituent city-states, and enumerated and forceful authority within those city-states by the federal government.

Throughout this study, essayists have shown how the American federal republic has empowered its own constituent states to retain substantial self-government without sacrificing the general powers needed for national defense against enemies foreign and domestic, retaining the freedom of interstate commerce, communication, and travel that affords the American people one of the highest living standards in the world. In the past century, the centralization and bureaucratization of both the federal and state governments have weakened citizen self-government, but the words of the original Constitution as amended in the years immediately succeeding the Civil War, and the intentions of the Framers and those citizens who have remained loyal to their intentions, guided by their principles of equal, natural (and therefore unalienable rights remain as a standard for those who continue to hold certain truths to be self-evident.

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 Essayists: James C. Clinger and Michael W. Hail

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Constitutions can be thought of as institutional arrangements that shape the way that individual preferences will be expressed and collective decisions made within a government. The provisions of a constitution also reflect preferences, but the provisions of a constitution may have long-run impacts upon the way that individual preferences are translated into legally binding collective decisions well into the future. Some of these decisions will have implications that are unforeseen and unintended, even if the specific provisions of a constitution were intended by its framers to have different results. In particular, the constitutional framework of a state or nation shapes the path dependent development of that political community. Once the highest law of a polity has been designed, political, legal, and economic decisions are made with that framework in mind. Decisions involving sunk costs are made premised on a particular legal order. Once those decisions are made, it may be difficult to reverse them. The political and economic trajectory of a polity may be set in place, and the momentum built up over history may be hard to swerve in a different direction. Such can be seen in Kentucky’s experience with its state constitutions.

Constitutions can also be understood as covenants.[1] The role of political theory is particularly useful in understanding constitutions and the jurisprudence interpreting them. While classical understandings of Plato and Aristotle were central to the American Founders’ constitutionalism, they were even more influenced by modern political theory from Thomas Hobbes and John Locke. “The treatment of covenant …in [Thomas Hobbes] Leviathan is thoroughly Puritan, and in general should be regarded as a secularized version of the English Puritans’ theory of a commonwealth.”[2] Ultimately, the way the founders understand a constitution is the most important foundation for constitutional interpretation and this is often referred to as original intent. The meaning of provisions in any constitution will require time for judicial processes and political governance to fully articulate, and under the English common law legal system, the original understanding of those who found constitutions is central to the subsequent constitutional interpretation.

The Commonwealth of Kentucky has crafted four different constitutions.[3] Each can be seen to reflect the ideas and interests of its proponents. Each was a response to particular events and circumstances.   Each has been interpreted over time, not only by the courts but by agencies authorized to implement state law.

The first constitution was drafted in 1792 as a condition of Kentucky’s admission to the United States.[4] There were “four successive enabling acts passed by the legislatures of Virginia, that Kentucky was allowed to enter the Federal Union as an Independent State, on an equality with those which had established themselves as a nation.”[5] Kentucky had similar influences as the other states and scholars have generally concluded the resulting constitutions follow the model of the federal constitution of 1787.[6] The federal constitution was an example of American exceptionalism. “The Constitutional Convention was a signal event in the history of federalism for it was there that the American style of federalism originated.”[7] The Compact With Virginia, as the fourth enabling act has come to be known as, provided the constitutional and legal road map to statehood for Kentucky. Nine pre-constitutional conventions were held as part of the process leading to the Compact With Virginia. The tenth was the actual founding constitutional convention.

Although many Kentuckians were from Virginia, and some of the easternmost counties in Kentucky were formerly counties within Virginia, much of the first constitutional structure was drawn from the 1790 state constitution of Pennsylvania. George Nicholas, often considered the primary architect of the document at the state constitutional convention, deliberately drew from the Pennsylvania charter, which was considered among the more radical of its day. The politics of admission to the union was influential in looking to Pennsylvania also, as Kentucky was competing with Vermont in the Federalist-controlled Congress for admission as the next state after the original thirteen. The political balance of power in Congress was a cloud over the admission process that affected these considerations. Kentucky endured numerous pre-constitutional conventions and the Compact With Virginia ultimately governed Kentucky’s transition to statehood. Kentucky retained the constitutional offices, state and local administrative structures, local government forms of Virginia despite some influence from Pennsylvania. The Bill of Rights that the constitution included at the end of the document reappeared in virtually unchanged form in each of the following three Kentucky constitutions, although those provisions have been moved near the beginning of the document. Isaac Shelby was a central leader in the Kentucky constitutional conventions and the admission to statehood process.  Shelby was elected as the first Governor of Kentucky and remains to this day the only Governor elected unanimously. Isaac Shelby would return to election as Kentucky Governor a second time as Kentucky and the nation prepared for the War of 1812.

The 1792 constitution provided for a fairly broad elective franchise, a secret ballot, and provision for a referenda for constitutional conventions but provided for  no amendment process. The legislature was granted the power to regulate the slave trade. The bicameral legislature was made up of eleven members in the senate and no fewer than forty and no more than one hundred members of a house of representatives. An electoral college would select both the governor and the members of the senate.

The second constitution was drafted in large part in response to a controversy over gubernatorial succession. The document responded to demands for more restriction on government powers, including limits on the authority of the legislature to regulate slavery. The electoral college was eliminated, providing for direct election of all constitutional offices.   The secret ballot was eliminated and viva voce voting put in its place. The constitution specified that the senate would have at least twenty-four members, with no fewer than fifty-eight in the house, nor more than one hundred. 

The third constitutional convention met in 1849 and the resulting document was ratified by public vote in 1850. The issue of slavery hung heavily over the constitutional deliberations. The influence of Jacksonian democracy could be seen in the document, with more offices up for election, with a long ballot being the result. The document specified that the senate would have thirty-eight members with one hundred in the house. For the first time, public education was covered at length, with the document establishing a Common School Fund to help finance schools. Slavery and education were the only policy issues to receive extensive attention.

The fourth and current constitution was ratified after a convention in 1891. The document was drafted in a time of progressive reform in much of the country. In Kentucky, there was a great deal of resentment felt toward corporations and specifically, railroads. It was widely believed that the legislature had been badly corrupted by corporate interests. As a result, the new constitution put many restrictions on local and special legislation that was believed to favor special interests. The preamble was changed to identify Kentucky as a “commonwealth” and to assert that all power is “inherent in the people.” The bill of rights was moved to the beginning of the document. The secret ballot which been absent in the last two constitutions was returned. For the first time, the constitution provided for an amendment process so the constitution could be changed in a piecemeal basis. The document was filled with policy-specific details including special provisions regarding corporations, local government, debt, and taxes. The constitution limited the governor and other constitutional officers to one four-year term, a restriction that was not removed until the 1990s. The General Assembly was to meet only every other year, although the legislature was authorized to meet in annual sessions by constitutional amendment in 2001. Judges were to be elected in non-partisan races.

Kentucky’s fourth and, thus far, last constitution placed substantial curbs on state and local governments much like other states, particularly southern state constitutions, have done. However, while Kentucky has long been a socially conservative state, the constitution–and its interpretation–have not pushed the Commonwealth as far to the right as some other southern states have gone, particularly on fiscal and regulatory matters. What is notable is that the basic political trajectory of the Commonwealth’s policies and politics can be understood in light of  the Kentucky courts’ decisions which have added to and sometimes subtracted from the actual constitutional text.

Section 14 of the Constitution guaranteed that “All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” The court structure was completely revamped in the 1970s, but the “open courts” provisions have remained untouched. This has prevented efforts to institute tort reform or other limitations upon liability that are common in other states. Legislation that would have had medical malpractice claims pass through a medical review process before heading to court were struck down as unconstitutional.[8]

The constitution explicitly listed permissible tax sources for both state and local government. An income tax for local governments was not authorized, but license taxes were. In the early twentieth century, the city of Louisville imposed occupational license taxes in which the liability of each taxpayer was defined as a percentage of their earned income. This levy was quickly challenged as an unconstitutional tax. The state’s highest court ruled in the City of Louisville v. Sebree case that the occupational license tax—which was a flat income tax under another name—was a permissible tax under the constitution.[9]

Section 246 of the Constitution also limited the compensation given to state officials, with the highest sum permitted set at $12,000. Though unamended since 1949, the  constitution was construed in 1962 to permit the Commonwealth to pay officers and employees an amount equal in buying power to that of the standard set in 1949.[10] This application of the “rubber dollar doctrine” has probably permitted the state to recruit and retain employees who would not be willing to work for the constitutionally specified salary. Nevertheless, it is not clear that this practice is what the framers intended.

One of the most important constitutional rulings which has expanded the scope and size of government in the Commonwealth dealt with public education. Kentucky, like most states, has long had a substantial share of the financing of public education provided by local tax sources, primarily the property tax. Since tax bases are limited, and tax levies legally limited by the state, public schools had difficulty raising money and some school districts were much more limited in their revenues than others. General language in Section 183 of the Constitution stipulating that “The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State” was used by the state supreme court to invalidate the existing financing system.[11]    Since that decision, Kentucky has risen from one of the lowest spending states on public education to one that is in the middle ranks of the states.[12]

Kentucky has periodically had discussion of constitutional reform but despite commissions and studies, Kentucky continues to operate under the fourth Constitution of 1891.[13] Amending the Kentucky Constitution requires passage in both the House and Senate by three-fifths majority in each chamber and amendments can originate in either chamber. An amendment approved by the session of the General Assembly is placed on the general election ballot for consideration by the Kentucky electorate and a simple majority is required for ratification of an amendment. There can be no more than four amendments considered by the voters in a general election. The Governor has no authority in the amendment process, other than the duty to make a proclamation regarding the amended constitution if approved by the voters in the general election.

James C. Clinger is a professor in the Department of  Political Science and Sociology at Murray State University.  He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

Michael W. Hail is Professor of Government and Director of the Statesmanship at Morehead State University in Kentucky, and serves as Government Program Coordinator and Director of the Intelligence Center for Academic Excellence (ICCAE). He is co-editor of Kentucky Government, Politics, and Policy. Dr. Hail focuses his research on federalism and intergovernmental management. His research interests include economic development policy, state and local government, American political thought, and Western political philosophy. Dr. Hail teaches courses on Public Administration, Federalism and Constitutional Law, Public Management, State and Local Government, Economic Development, Western Political Philosophy, Intelligence Studies, and American Political Thought. 

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[1] Elazar, Daniel.  Covenant and Constitutionalism: The Covenant Tradition in Politics.  New York: Routledge, 2018.

[2] Schneider, Herbert W., ed.  Thomas Hobbes Leviathan – Parts One and Two. New York: Macmillan Publishing Company, 1958, p.x.

[3] Clinger, James C., and Michael W. Hail. Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.

[4] Ireland, Robert M.  “The Kentucky Constitution.”  Clinger, James C., and Michael W. Hail.  Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.

[5] Thorpe, Francis Newton. The Federal and State Constitutions: Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America. Washington Government Printing Office, 1909.

[6] Taulbee, Ashley.  The Kentucky Constitutional Conventions and the Federalism of the Founding Fathers.  Master Thesis.  Morehead State University, 2017.  Taulbee states, “There are several aspects of influence and interconnectedness between national constitutionalism and state constitutionalism reflected in the Kentucky case. The political theory influences, as well as the structure of the institutions in the U.S. Constitution of 1787, and certainly the political thought expressed at the convention in Philadelphia, all are major influences on how state constitutional conventions are modeled. Core constitutional provisions such as separation of powers, checks and balances, and bicameral legislative bodies are among the constitutional features of the U.S. constitution that are consistently incorporated in state constitutions. The politics in Congress as well as in the territory itself play a significant role in framing the terms under which statehood and state constitutional conventions can operate.”(pp.3-4)

[7] Smith, Troy.  “Constitutional Convention of 1787.”  Federalism In America.  Westport, CT: Greenwood Press, 2006, p.116.

[8] Commonwealth v. Claycomb, 2017-SC-000614.

[9] City of Louisville v. Sebree, 214 S.W.2d 248

[10]Matthews v. Allen,  360 S.W.2d 135 (1962

[11] Rose v. Council for Better Education, 790 S.W.2d 186

[12] Digest of Education Statistics,  Department of Education, National Center for Educations Statistics.  https://nces.ed.gov/programs/digest/2017menu_tables.asp

[13] Clinger, James C., and Michael W. Hail. Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.

A house divided cannot stand.”

That famous declaration of Abraham Lincoln’s looms large today. It seems like every day we receive further evidence of just how divided we are. Americans increasingly can’t agree on what our nation is, who it includes, how it should be governed, or what common values we honor and respect.

In fact, according to a recent Battleground Poll, conducted by Georgetown University’s Institute of Politics and Public Service, a full 70% of Americans believe we are nearing the edge of civil war.

America has lost its way. How can we be “one nation, under God, indivisible” again?

In divided times like these, it’s more important than ever to teach Americans about the documents and principles that hold our nation together—the U.S. Constitution and the civic institutions and practices it enshrines—before they go forgotten and are lost.

That’s been Constituting America’s mission since Actress Janine Turner (Northern Exposure, Friday Night Lights, Cliffhanger) founded it in 2010. It’s been the best—and only—organization educating young Americans, through multi-media and cultural outreach, about the importance of the U.S. Constitution and the rights it protects.

You and I know that it is only through our nation’s founding principles—individual liberty, the rule of law, property rights, and limited government—that the United States can again flourish. Our hope lies in restoring reverence for these principles among young Americans.

I want to share with you today the optimism I feel for the future of our nation—not just because of all we’ve accomplished in 2019, but because of all you and I can do together in 2020 and beyond.

As you may know, 2020 marks Constituting America’s 10th birthday! And as we turn ten, our plans are bigger than ever—especially when it comes to reaching young American citizens in schools! Constituting America has had unprecedented demand from public schools this past year for our programs. In fact, we’ve almost doubled 2018’s total!

Last year we made 90 school presentations introducing students to the importance of the U.S. Constitution. This year, we’re already at 158 presentations, with more scheduled before year’s end! These include presentations by

  • Janine Turner, our founder and co-president, who connects dynamically via Skype to classrooms around the country, offering students a once-in-a-lifetime opportunity for students to become inspired about the U.S. Constitution by an Emmy and three-time Golden Globe nominated actress.
  • Terry Cherry, the Immediate Past President of the National Council of the Social Studies and a retired social studies teacher, speaking directly to the importance of our nation’s founding institutions.
  • Re-enactors from the American Historical Theatre whose gripping portrayals bring George Washington, Thomas Jefferson, Abigail Adams, Betsy Ross, Alexander Hamilton, and Benjamin Franklin into public schools. This past year we reached over 1,600 students in three different schools in Northern Virginia with these talented actors, bringing history vividly to life for students.

Constituting America’s efforts directly address the root problem dividing our country: a lack of civil discourse. People acting as if shaming, silencing, slandering, or screaming in the streets are the best ways to address disagreement.

We teach students a better, American way: to solve disagreements and pursue change by using RAPPS—their first amendment rights to religion, assembly, petition, press, and speech. It’s through principled commitment to such free assembly and expression that citizens can peacefully partake in a republic—NOT through the tyranny of mob passion.

This effort took a major step forward last January when Constituting America launched our Civil Civic Conversation program, holding 13 pilot Conversations involving 331 students in Houston, Dallas, and Ohio. Students adopted opposing views on a controversial issue, then worked together to create a legislative solution. Educators involved in the program called the discussions “simply amazing,” especially in how students “implemented them into our classroom practices.”

We can’t wait to build on the smashing success of this pilot program in 2020, to introduce these crucial habits of democratic citizenship and civility to thousands of students around the country.  Our plans include adding more speakers to our school speaking team including veterans, active duty police officers and more retired teachers!

In 2020, Constituting America will also tackle the divisive revisionist histories that seek to poison Americans’ attitudes concerning our founding. With our upcoming 90 Day Study, entitled: 

In the Course of Human Events: A 90 Day Study of Important Dates In American History That Shaped the United States And Changed The World

We will publish an essay a day for 90 Days by a noted Constitutional Scholar or historian on an important date relevant to the founding of our country. Our 90 Day Studies are shared widely on social media, and we have one of the strongest social media followings of any Constitution Education organization.

Rest assured that we will also continue to promote our “We The Future” Contest Winners’ creative efforts. We hope to build on 2019’s tremendous numbers culminating in: 145 million impressions of our winners’ songs, over 12 million views of their PSA’s, and over 40 film festival acceptances!

This is just the outer edge of Constituting America’s work. But the point I want to emphasize is simply this: Even as the divisions in our nation widen, Constituting America is growing to bridge the gap and restore America to its roots.

Can we count on your continued support to bring our urgently needed programming to the young men and women who will be the civic leaders of tomorrow?

Your tax-deductible gift of to Constituting America will help us educate young Americans in the founding documents and principles of our nation . . . and train them to be the informed and responsible citizens who mend our wounds of division in the years to come.

Thank you so much for your tireless support of our most cherished American values. In times of turmoil like these, it is wonderful to be able to count you as a friend. You are an important member of our team, educating students about the U.S. Constitution and our country’s founding principles.

With our best wishes for a wonderful Christmas, and a Happy New Year,

 

Cathy Gillespie
Co-President
Constituting America

P.S. – What’s tearing our nation apart is not simply partisanship but rather the inability to have a civil civic conversation. Your tax-deductible gift to Constituting America can introduce a new generation of young Americans to the lost art of Civil Civic Conversations, based on Constitutional knowledge and our country’s founding principles.

Please give your most generous gift today and help us make our year-end goal that will allow us to grow our Constitution Education programs in 2020 and take Constituting America to the next level for our 10 year anniversary!

Guest Essayists: James C. Clinger and J. Drew Seib

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State legislatures normally have had only very few, basic constitutional procedural requirements regarding the passage of legislation. Most state constitutions stipulate that laws can be enacted only after bicameral passage of identical measures, followed by presentment to the chief executive. There may also be requirements that bills receive “readings” on three or more legislative days before passage. Practically speaking, most legislative procedure is determined by internal rules of each chamber. These rules refer to bill referral to committees, methods of bringing bills to the chamber floor, procedures for disciplining members, etc.

Many of the early state constitutions did not provide a means by which the governor could block legislation through a veto. This reflected an anti-executive power bias that carried over from the opposition to the king in colonial times. Gradually, however, the powers of governors increased, and among the most important powers of the governor was the power to veto. In the 1990s, North Carolina’s governor was the last to gain the veto power. The veto power varies dramatically among the states, particularly regarding which measures are subject to veto and the ease with which the legislatures can override the veto. Many states now permit an item veto for appropriation bills, but not for other legislation. Proposed constitutional amendments approved as joint resolutions by the legislature cannot be vetoed by the governor, but instead in most states today go to the electorate for approval. In several states vetoes can be overridden by margins much smaller than the two-thirds requirement necessary for overriding presidential vetoes. In some states, only a simple majority of those elected to serve in each chamber is needed to override the governor’s veto.[1]

In the early 20th century, many states began to adopt direct democracy mechanisms, such as the initiative, that permitted citizens and interest groups to propose new statutory laws or new constitutional amendments without going through the legislature. This has led to the adoption of new laws that would have not gained legislative approval and new institutional changes that dramatically changed legislative careers.[2]

One of the notable changes associated with the initiative process is the adoption of legislative term limits placed within state constitutions. The limits prevent elected officials, often legislators, from serving beyond a specified number of terms in office. Gubernatorial term limits have been more common for years, but only more recently have term limits on state legislators become common. These limits have generally been opposed by state legislators whose careers would be altered by the constraints. Opponents of term limits have also said that the restrictions reduce the professionalism of their elected office and shift the balance of power from legislators to the governor and legislative staff.[3]

For much of American history, state legislatures could be characterized as “amateur” public institutions. Legislators were not well-paid, had few resources for legislative research, constituency service, or administrative agency oversight. They worked as part-time volunteers who did not expect to remain in office for an extended period of time. During the 1960s and 70s in particular, most but not all state legislatures increased legislative salaries (or legislator per diem payments), adopted longer legislative sessions, increased legislative staffing, and created legislative research bureaus to help with bill drafting and analysis of proposed bills or policy problems. This seems to have led to more member stability and longer legislative tenure. It may have also motivated activists in the term limits movement, who distrusted professional, career politicians. Scholarly research on this topic has found that professionalization of state legislatures has led to more African-Americans and fewer women entering the chambers.[4] It may have also increased the size of the Democratic Party share of the legislature, at least outside the South,[5] though the effects of professionalization appear to vary by party.[6] The imposition of term limits does not have appeared to have ended political careerism, since many term limited state legislators pursue other offices, including congressional seats.[7] Legislative professionalism as well as one party dominance has also been found to particularistic, such as local legislation and special bills, which are apparently aimed at boosting chances for re-election.[8]

Finally, it should be noted that the role of state legislatures has changed because of actions of the federal government. Under the national supremacy clause, discussed above, federal law prevails when it is in conflict with state law. This practice, known as preemption, has been used throughout much of American history.[9] More recently, however, state laws have been invalidated through preemption not only when laws enacted by Congress conflict with laws enacted by state legislatures but also when federal agency interpretations of how or whether to enforce laws may conflict with laws enacted by state legislatures.[10] Intergovernmental grant programs may also lead to a “work around” the state legislatures. For example, the Patient Protection and Affordable Care Act provided that state chief executives, not legislatures, would  approve the creation of state health insurance exchanges.[11]

While very influential in national politics early on in U.S. history, the addition of particularly the 17th Amendment, but also the 16th, 19th and 26th Amendments have weakened the role of state legislatures in national politics. What is more, federal preemption by not only laws enacted but also federal agency interpretation of laws has weakened the role of state legislatures in national politics.

Since their inception, the state legislatures have served as the proverbial “lab of democracy” both across states and for the federal government. The variation in design, rules, and procedures has served as an opportunity to study institutional arrangements and their effects.  Many of the features in the U.S. Congress were taken from practices in state legislature and states often adopt successful reforms from other states.[12]  Their variation in designs is an opportunity to learn and strengthen political institutions in the United States.

James C. Clinger is a professor in the Department of  Political Science and Sociology at Murray State University.  He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

Dr. J. Drew Seib joined the faculty at Murray State University in the Fall of 2012. He teaches courses in American politics and research methods. Dr. Seib is the advisor for the Murray State Chapter of Pi Sigma Alpha, the National Political Science Honor Society. Dr. Seib received his Ph.D. and M.A. from Southern Illinois University with an emphasis in American political behavior. His dissertation, Frantic Voters: How Context Affects Information Searches, was awarded a prestigious National Science Foundation Dissertation Improvement Grant. Dr. Seib received his B.A. from Westminster College in Fulton, MO, triple majoring in political science, Spanish, and international studies, and minoring in European studies.

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[1] https://ballotpedia.org/Veto_overrides_in_state_legislatures

[2] See Gerber, Elisabeth R., Lupia, Arthur, McCubbins, Mathew D., and Kiewiet, D. Roderick. Stealing the Initiative: How State Government Responds to Direct Democracy. Upper Saddle River, NJ: Prentice Hall. 2001.

[3] Carey, John M., Richard G. Niemi, and Lynda W. Powell.  1998. “The Effects of Term Limits on State Legislatures.”  Legislative Studies Quarterly, 23(2): 271-300.

[4] Squire, Peverill.  “Legislative Professionalization and Membership Diversity in State Legislatures.” Legislative Studies Quarterly.  Vol. 17, No. 1. (1992): 69-79 .

[5] Meinke, Scott R., and Edward B. Hasecke. “Term Limits, Professionalization, and Partisan Control in U.S. State Legislatures.” The Journal of Politics 65, no. 3 (2003): 898-908.

[6] Sanbonmatsu, Kira.  2002. “Political Parties and the Recruitment of Women to State Legislatures.”  The Journal of Politics, 64(3):791-809.

[7] Carey, John M., Niemi, Richard G., and Powell, Lynda.  Term Limits in the State Legislatures.  Ann Arbor: University of Michigan Press. (2000).

[8] Gamm, Gerald, and Kousser, Thad. “Broad Bills or Particularistic Policy? Historical Patterns in American State Legislatures.” The American Political Science Review 104, no. 1 (2010): 151-70.

[9] For an early example, see Gibbons v. Ogden).  22 U.S. 1. (1824).

[10] See, for example, Arizona v. United States, 567 U.S. 387 (2012)

[11] Fahey, Bridget A.. “Consent Procedures and American Federalism.” Harvard Law Review Vol. 128,(2014): 1564-1629.

[12] see Berry, Frances Stokes, and William D. Berry. 1990. “State Lottery Adoptions as Policy Innovations: An Event History Analysis.” American Political Science Review 84(2): 395–415.

 

Guest Essayists: James C. Clinger and J. Drew Seib

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The legislatures in American state governments developed alongside and even prior to the more famous and well-studied Congress of the federal government. Their origins can be found in the colonial assemblies that existed before the American Revolution. Those institutions developed structures, procedures, and qualifications for office-holding that influenced the development of the national legislature. This essay will briefly describe the development of the state legislatures and their relationship to the federal government.

Legislatures in the American colonies developed very quickly, largely at the request of local interests, not at the behest of the British government. These assemblies varied greatly from one another, although most, but not all, were bicameral, with different qualifications for office-holding and for voting for different chambers.[1] These assemblies were not modeled after the British parliament, which in its modern form did not exist. In fact, the first legislatures in the American colonies were created long before the Glorious Revolution of 1688, which established the principle of parliamentary supremacy over the monarch.

During the American Revolution, royal governors often dismissed or at least attempted to suspend the colonial assemblies. Most of the newly declared states established legislatures that have come to be known as provincial congresses, which lasted until the end of hostilities. At that time, formally recognized state legislatures were created, and were allowed great authority under the Articles of Confederation. Once the new federal constitution was drafted, the state legislatures exercised new roles within the newly created union as well as within their respective states. Under the new constitution, the electorate choosing the members of the United States House of Representatives were to have the same qualifications “requisite for the Electors of the most numerous Branch of the State Legislature.”[2] At that time, states frequently had more stringent voter qualifications to vote for the upper chamber of the legislature (i.e., the senate) than they had for the more numerous, lower chamber (e.g., the house of representatives, although many states use a variety of names for their lower chambers). By setting higher voter qualifications (usually regarding age, sex, property ownership, “freemen” status) for their own legislatures, the state could affect the electorate choosing its delegation to the United States House of Representatives.

Originally, the state legislatures directly selected the United States senators from each state, although that practice was ended by the ratification of the 17th Amendment, which established direct election of U.S. senators.[3] In the early years of the constitutional republic, the state legislatures regularly sent instructions to their senate delegations, describing how they should vote on issues in Congress. Earlier, under the Articles of Confederation, the state legislatures not only chose their state’s delegates to congress but also had the authority to recall them from office if the legislatures were displeased with their performance.[4]

The federal constitution also assigned a role for the state legislatures in determining the “Times, Places, and Manner” of federal house members and senators, subject to the proviso that “the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.”[5] Years later, the discretion of state legislatures was constrained further by the ratification of the 15th, 19th, and 26th amendments (creating a right to vote for people of all races, for women, and for eighteen year olds), and by the passage of the Voting Rights Act and other pieces of legislation.

The Constitution also provided a role for state legislatures in amending the federal charter, by either proposing a convention for proposing amendments (by a vote of two-thirds of the states) and by ratifying constitutional amendment proposals (by a vote of three-fourths of the states).[6] All successful constitutional amendment proposals have been proposed, not by a convention called by the state legislatures, but by two-thirds votes of each chamber in Congress. All but one successful amendment—the exception being the 21st, which repealed prohibition–were ratified by the state legislatures. The repeal of prohibition was ratified by special conventions in the states.

The Constitution also stipulated that certain powers were forbidden for the states. Although state legislatures were not explicitly mentioned, legislatures would have been the body enacting such prohibited laws (e.g., regarding titles of nobility, currency, interstate taxation).[7]  The constitution also stipulates that federal laws, including the constitution, laws, and treaties, constitute the “supreme Law of the Land,” and state officers, including members of the state legislatures, must be bound by oath or affirmation to uphold the constitution.[8] The national supremacy clause was included in the constitution only after the defeat of a proposal by James Madison to authorize Congress to negate any state law that it opposed.[9]

The early state legislatures varied in structure but had some common structural elements.   Most, but not all (i.e., Georgia and Pennsylvania had only one legislative chamber and today Nebraska is the only unicameral legislature in the U.S.), were bicameral. A small number chose their senators through an electoral college, as was sometimes done for governors and as is still done for the federal president. That practice was not common and was ended completely well before the civil war. Most state legislatures developed standing committees early in their histories, often well before the federal Congress had established that practice. State legislators generally controlled the internal rules of their chambers and selected their own leadership. Once political parties were well-established, the organization of each chamber (leadership selection, committee assignment, and committee chair selection) became largely a matter for the party organizations to decide. Today, even Nebraska’s non-partisan legislature organizes along partisan lines.[10] Most legislatures met in annual sessions and most legislators served terms of office of one year, although some members of the upper chamber served two or three years.   Later in the nineteenth century, biennial sessions became standard practice, but in the late 20th century annual sessions became the norm again.[11] The size of each chamber differed widely among the states. Originally, South Carolina’s lower chamber had 199 members, while its upper chamber had only 13. Delaware, on the other hand, had only 21 in its lower chamber and nine in its upper.[12] Most legislators represented single member districts. The number of legislators was and still is significant because as the size of the legislative chamber increases, the average size of each district or constituency diminishes. Usually the demographic diversity of the constituency diminishes as the size of the district goes down. This changes the task of representation of constituency interests dramatically.[13] The number of seats in the lower chamber compared to the number in the upper chamber affects the difficulty that an ambitious, career-minded legislator may have to move from the lower to upper chamber.[14]

James C. Clinger is a professor in the Department of  Political Science and Sociology at Murray State University.  He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

Dr. J. Drew Seib joined the faculty at Murray State University in the Fall of 2012. He teaches courses in American politics and research methods. In addition to his teaching duties, Dr. Seib is the advisor for the Murray State Chapter of Pi Sigma Alpha, the National Political Science Honor Society, and Racers for Bernie. His research focuses on how voters make decisions. He is especially interested in how voters acquire information during campaigns under a variety of contexts and conditions. Dr. Seib also privately consults on web-based surveys. Dr. Seib received his Ph.D. and M.A. from Southern Illinois University with an emphasis in American political behavior. His dissertation, Frantic Voters: How Context Affects Information Searches, was awarded a prestigious National Science Foundation Dissertation Improvement Grant. Dr. Seib received his B.A. from Westminster College in Fulton, MO, triple majoring in political science, Spanish, and international studies, and minoring in European studies.

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[1] Squire, Peverill.  The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009.  Ann Arbor: University of Michigan Press, 2012.

[2] United States Constitution, Article 1, Section 2, Clause 1.

[3] United States Constitution, Article 1, Section 3, Clause 1, and United States Constitution, 17th Amendment, Section 1.

[4] United States Articles of Confederation, Article 5.

[5] United States Constitution, Article 1, Section 4, Clause 1.

[6] United States Constitution, Article 5.

[7] United States Constitution, Article 1, Section 10.

[8] United States Constitution, Article 6, Sections 2-3.

[9] Hobson, Charles F. “The Negative on State Laws: James Madison, the Constitution, and the Crisis of Republican Government.” The William and Mary Quarterly 36, no. 2 (1979): 215-35.

[10] Wright, Gerald C. and Brian F. Shaffner. 2002. “The Influence of Party: Evidence from the State Legislatures.”  American Political Science Review 96(2): 367-379.

[11] Squire, Peverill. “American State Legislatures in Historical Perspective.” PS: Political Science & Politics 52, no. 3 (2019): 417–21.

[12] Squire, Peverill.  The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009.  Ann Arbor: University of Michigan Press, 2012, 84.

[13] Denzau, Arthur T., and Michael C. Munger. “Legislators and Interest Groups: How Unorganized Interests Get Represented.” The American Political Science Review 80, no. 1 (1986): 89-106.

[14] Squire, Peverill. “Member Career Opportunities and the Internal Organization of Legislatures.” Journal of Politics, Vol. 50, No. 3 (1988): 716-44.

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Constituting America’s “39” Giving Tuesday Heroes

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Constituting America’s Tenth 90 Day Study

In the Course of Human Events:
A 90 Day Study of Important Dates in American History That
Shaped the United States and Changed the World

Introduction

May 14, 1607 – Jamestown, Virginia Founded
The Virginia Company, a group of London entrepreneurs, many of whom were artisans, craftsmen, and laborers, landed on Jamestown Island, the Chesapeake region of North America, to establish the first permanent English settlementDespite harsh first years and starvation, the settlers instituted private ownership of land which increased productivity.

July 30, 1619 – Virginia House of Burgesses Convenes
The first legislative General Assembly of Virginia, which became the Virginia House of Burgesses, was a new form of government that could be checked as an elected representative assembly. The assembly was elected by the settlers of the American colonies and first convened in the town church at Jamestown, Virginia on July 30, 1619. At first, however, the assembly was a charter issued by the Virginia Company of London under British control, allowing the colonies to have some self-government, but the Crown increasingly placed limits on the colonies ability to govern themselves.

November 11, 1620 – Mayflower Compact Signed
Forty-one of the 101 English passengers who traveled to the New World aboard the Mayflower ship wrote and signed the compact which later influenced the Declaration of Independence and U.S. Constitution.  The compact was written by those fleeing religious persecution by King James, to establish religious freedom, and self-governance in the New World.

May 28, 1754 – Battle of Jumonville Glen Starts French and Indian War
In 1753, competition for the Ohio River Valley intensified aggression between British and French troops. Virginia Regiment Lieutenant Colonel George Washington responded by attempting to push back the French from the Ohio River Valley. By May 27, 1754, Washington learned of French soldiers planning to close in on the Virginians. The next day on May 28, Washington with Mingo chief Tanacharison led troops to raid against the French, but ultimately had to surrender. The attack of Jumonville Glen led to tensions escalating further, resulting in the start of the French and Indian War.

April 19, 1775 – Battles of Lexington and Concord, American Revolution Begins
British troops were on their way to Concord, Massachusetts, to seize firearms and supplies from the American colonists. Paul Revere rushed to alert everyone so that militiamen, or Minutemen, could quickly mobilize. When the British arrived on the town green in Lexington, Massachusetts, either a British soldier or an American Patriot fired, known as “the shot heard ‘round the world” and the Revolutionary War for America’s fight for freedom began.

October 13, 1775 – United States Navy Founded
In efforts to hold off British control of the seas, the Continental Navy that eventually became the United States Navy, was established by the Second Continental Congress that met in Philadelphia soon after the Revolutionary War began. Over 240 years ago, starting with only two armed vessels, the U.S. Navy grew into the largest, most advanced fighting force in the world.

  • October 13, 1775: Birth of the United States Navy by Jeff Truitt, Captain in the United States Navy Reserve; Small Group Seminars Leader on Operational Maritime Law, U.S. Naval War College; Served on active duty as a submarine officer in the Cold War

July 4, 1776 – Declaration of Independence Finalized
In Philadelphia, once the Continental Congress voted on declaring freedom from  British political connections July 2, 1776, they drafted a document, headed by the Committee of Five: John Adams, Roger Sherman, Robert Livingston, Benjamin Franklin, and Thomas Jefferson, to present to the public. On July 4, approved version of the Declaration of Independence and sent it to the printers, initially signed by John Hancock, and later signed by other members in August. Soon after, July 4 became the day chosen to celebrate America’s independence.

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

October 17, 1777 – British Surrender at Saratoga, Triggers French Alliance
The plan was to divide the colonies, starting with New York. The battles at Saratoga ending in the British force surrendering showed a significant turn in the American Revolution resulting in the French government formally recognizing the colonists as an ally in the war.

Guest Essayist:

The Honorable David L. Robbins, Education Commissioner, District 2, New Mexico

July 9, 1778 – Articles of Confederation Approved
The Articles of Confederation were enacted as the first U.S. founding document and constitution, the first document that saw the colonies working together—a  forerunner of the Union established more formally in subsequent years. The Articles of Confederation were enacted by Congress March 1, 1781.

Guest Essayist:

Joerg Knipprath, Professor of Law, Southwestern Law School; Constituting America Fellow

October 19, 1781 – British Surrender at Yorktown, Effectively Ending the Revolutionary War
The surrender of General Charles Cornwallis to General George Washington at Yorktown, Virginia, was the final battle of the American Revolution. Then, in 1783, the Treaty of Paris was signed after an appeal from the British for peace, and the American Revolutionary War was over.

Guest Essayist:

Gary Porter, Executive Director, Constitution Leadership Initiative

December 23, 1783 – George Washington Resigns Military Commission
In an example of unrivaled statesmanship, General George Washington resigned his military commission at the State House in Annapolis, Maryland on December 23, 1783 to return to his Mount Vernon, Virginia home as a private citizen. Washington’s resignation was pivotal for American history because he willingly gave up power. He later participated in the Constitutional Convention of 1787 in Philadelphia, and was unanimously elected president of the United States in 1789. He reluctantly accepted the presidency and rejected any form of kingship. In 1797, Washington again surrendered his position, allowing a fellow American to serve as president. The example Washington set for America’s republican form of government was that of a peaceful transfer of power, a requirement the nation would need to serve by leadership and freedom rather than dictatorship.

Guest Essayist:

Gary Porter, Executive Director, Constitution Leadership Initiative

Val Crofts, Social Studies Teacher, Wisconsin; Member, U.S. Semiquincentennial Commission

July 13, 1787 – Northwest Ordinance Provided Process for Forming New States
The Northwest Ordinance under the Articles of Confederation helped expansion of the United States and the process of outlawing slavery among other needs, but didn’t go far enough to strengthen the growing country. While a good start toward providing a free and republican foundation for governance of the Northwest and other new states, the Constitutional Convention near the same time was at work on a U.S. Constitution that would provide a stronger national government to better preserve national interests and individual liberty for Americans.

Guest Essayist:

Joerg Knipprath, Professor of Law, Southwestern Law School; Constituting America Fellow

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

September 17, 1787 – Approval of the U.S. Constitution, Sent to the States for Ratification
After the major Declaration of Independence document solidified the American experiment of freedom, and then formation of the Articles of Confederation to get it all started, came the newly free nation’s U.S. Constitution. Affirming existence of the United States government as one designed to serve its citizens, the U.S. Constitution set up a new type of government with the legislative branch mentioned first in Article I as a reminder that supremacy lies with the people through their elected representatives.

Guest Essayist:

James D. Best, Author, Tempest at Dawn, a novel about the 1787 Constitutional Convention; and Principled Action, Lessons from the Origins of the American Republic

April 30, 1789 – George Washington Inaugurated as First President of the United States of America
How would the United States create a leadership position such as the presidency without repeating and it turning into what the colonists fought to escape? They would need the type of role that set a precedent America could trust for their current time and future to maintain what they started. It meant not having a king so the people could live in freedom because of the way their new government worked, not ruled by it like their past tyrannical experiences. When George Washington took his oath of office, he mentioned with humility that it was his shared responsibility with Congress to preserve “the sacred fire of liberty” and a republican form of government.

Guest Essayist:

Joerg Knipprath, Professor of Law, Southwestern Law School; Constituting America Fellow

September 29, 1789 – United States Army Established
On the final day of Congress’ first session, they passed “An act to recognize and adapt to the Constitution of the United States, the establishment of the troops raised under the resolve of the United States in Congress assembled.” The act legalized the existing U.S. Army created under the Articles of Confederation. George Washington reminded Congress that the issue of need for military forces under the Continental Congress needed to be set through action under the new Constitution.

Guest Essayist:

Craig Bruce Smith, Ph.D., Assistant Professor of History, William Woods University

August 4, 1790 – Alexander Hamilton’s Debt Plan Passes Congress, Resolved State War Debts and Laid Foundation for American Capitalism
Foreign and domestic finances were out of sorts for the United States after the Revolutionary War. Debt was high by that time and taxes even higher. Alexander Hamilton wanted the national debt managed better. His plan was to help the new American government be more open to capitalism so that the government, along with the growing nation, could be strong and upheld rather than weak and ineffective due to hostility toward capital. Hamilton’s idea for a Bank of the United States would help propel his plan toward financial stability, though James Madison and Thomas Jefferson feared it would create government power without boundaries.

Guest Essayist:

Scot Faulkner, Served as Chief Administrative Officer, U.S. House of Representatives and as a Member of the Reagan White House Staff; Financial Adviser; President, Friends of Harpers Ferry National Historical Park

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

December 15, 1791 – Bill of Rights Ratified
In 1789, James Madison spoke on the House floor introducing amendments to the U.S. Constitution, an attempt to persuade Congress a Bill of Rights would protect liberty and produce unity in the new government. Opposed to a Bill of Rights at first, stating that the rights of mankind were built into the fabric of human nature by God, and government had no powers to alienate an individual’s rights, and having witnessed the states violating, Madison realized in order to safeguard America’s freedoms, Congress needed to remain mindful of their role never to take a position of power by force over the people they serve.

Guest Essayist:

James D. Best, Author, Tempest at Dawn, a novel about the 1787 Constitutional Convention; and Principled Action, Lessons from the Origins of the American Republic

Gary Porter, Executive Director, Constitution Leadership Initiative

May 17, 1792 – Buttonwood Agreement Establishes New York Stock Exchange
Named for the regular meeting place outside of the street address 68 Wall underneath a buttonwood tree, the Buttonwood Agreement created rules for buying and selling company bonds and shares. The stockbrokers and merchants who were signers of the agreement set a constitution in 1817 for a new, New York Stock & Exchange Board, eventually renamed the New York Stock Exchange (NYSE). Moving here and there and with ups and downs of a growing nation, trading was done in such places as coffeehouses or by selling shares in the streets, the NYSE grew throughout the 1800s eventually to find its current home on Wall Street in New York City in 1903.

Guest Essayist:

John Steele Gordon, Business and Financial Historian; Contributor, American Heritage and the Wall Street Journal; Author of An Empire of Wealth: The Epic History of American Economic Power

March 14, 1794 – Eli Whitney Receives Patent for Cotton Gin
While similar separators existed for centuries, Eli Whitney’s machine was the first to separate seeds from cotton with shorter fibers. He learned that Southern planters were in need of a way to make cotton a profitable crop. One of Whitney’s cotton gins could clean up to fifty pounds of cotton in one day, making cotton profitable to cultivate for the first time. Yields of cotton produced steadily rose, along with demand and other inventions of the Industrial Revolution, throughout the 1800s with use of the cotton gin.

July 11, 1798 – United States Marine Corps Established
Originally established November 10, 1775 in Philadelphia to aid naval forces during the Revolutionary War, the Marine Corps was ended at the close of the war once American independence was achieved. Conflict increased once again, resulting in President John Adams signing a bill to formally establish the United States Marine Corps July 11, 1798 that would serve as a permanent military force under the Secretary of the Navy. Since the 19th century, the Marines have participated in all wars of the United States and usually the first soldiers to fight.

Guest Essayist:

Jeanne McKinney, Military Writer at Patriot Profiles; Award-winning Military Journalist; Winner of twelve San Diego Club “Excellence in Journalism Awards” and seven first place honors; Published, among many, in Working Dog Magazine, Homeland Security Today

April 30, 1803 – Louisiana Purchase Treaty Signed
The 1803 treaty signed in Paris brought a purchase by United States for 828,000 square miles, doubling the nation’s size. Constitutional questions stirred disputes over how to best divide territory and keep the nation’s peace. Concurrently, the Louisiana Purchase helped sustain America’s growing need for agriculture, free flow of commerce along the Mississippi, and secure westward expansion by escaping the taking of the territory from Spain by Napoleon Bonaparte.

Guest Essayist:

Gary Porter, Executive Director, Constitution Leadership Initiative

May 14, 1804 – Lewis and Clark Begin Exploration of Missouri River
Soon after the Louisiana Purchase, Meriwether Lewis, private secretary to President Thomas Jefferson, and William Clark, an army captain, were commissioned by President Jefferson to explore the Northwest from the Mississippi River to the Pacific Ocean via the Missouri River. Starting with 45 men as the “Corps of Discovery” later joined by French-Canadian fur trader Toussaint Charbonneau, and his Native American wife Sacagawea who accompanied the travels as an interpreter. By fall of 1806, the expedition returned, having explored largely unexplored westward territories that would later make up states such as North Dakota, Montana, and Oregon.

September 13-14, 1814 – Siege of Fort McHenry, Francis Scott Key Writes America’s National Anthem, the Star Spangled Banner
Soon after setting fire to the Capitol and White House, early on September 13, 1814, the British planned to attack again, this time Baltimore. Key, a young lawyer residing in Georgetown, went with Col. John Skinner in an attempt to get a beloved physician, Dr. William Beanes, released from a British ship. Unsuccessful, the three men were held under guard on board a sloop until the battle ended. Watching from the boat as British fired on Fort McHenry, Gen. Armistead’s huge flag was still flying after the firing stopped. Key was inspired to write a poem first entitled “Defence of Fort McHenry.” Later set to music and retitled “The Star-Spangled Banner,” it was adopted March 3, 1931 as America’s national anthem.

Guest Essayist:

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

February 22, 1819 – Adams-Onis Treaty Cedes Florida to the United States
In the 1819 agreement, formally ratified in 1821, between Spanish minister to the United States, Do Luis de Onis, and United States. Secretary of State John Quincy Adams, a purchase treaty was signed for Spain to cede the remaining portion of Florida to the U.S. The treaty set a boundary line between Spanish territory and the U.S., resolving land disputes between the U.S. and Spain, and was key to settling the U.S-Mexico border. The terms agreed to Texas being on the Spanish side of the boundary, determined the southern boundary, most of the western boundary, and Spain agreed to release its claim to northwest territory.

Guest Essayist:

David Head, Lecturer, Department of History, University of Central Florida; Author, A Crisis of Peace: George Washington, the Newburgh Conspiracy, and the Fate of the American Revolution

December 2, 1823 – Monroe Doctrine Issued
A warning was issued in 1823 by President James Monroe for European powers to cease attempts for further colonization or otherwise in order to protect the Western Hemisphere. As a matter of U.S. foreign policy, later known as the Monroe Doctrine, such attempts would be viewed as hostile acts toward the United States. The concern was autocratic colonial regimes might be restored by continental Europe and threaten the independence of the United States, thus the Monroe Doctrine created a clean break.

Guest Essayist:

Joshua Schmid, Program Analyst, Bill of Rights Institute

October 26, 1825 – Erie Canal Completed
In 1817, construction on the Erie Canal began, opening October in 1825. Initially a 363-mile waterway, 40 feet wide, four feet deep, it connected the Great Lakes and Atlantic Ocean flowing from the Hudson River at Albany to Lake Erie at Buffalo, New York. The canal increased transportation of bulk commercial goods at a much lower cost, widely expanded agricultural development, and brought settlers into surrounding states as the free flow of goods to the stretches of Northwest Territory were availed through the Appalachian Mountains.

Guest Essayist:

Gary Porter, Executive Director, Constitution Leadership Initiative

March 4, 1829 – Andrew Jackson Inaugurated President, Democrat Party Formalized
Andrew Jackson started out as a lawyer and grew in politics. By the end of the War of 1812 between the United States and Britain, Jackson was a military hero of great influence. Former governor of Tennessee, he defeated John Quincy Adams in 1828, became the seventh president and first Democratic Party president, and helped found the Democratic Party.

Guest Essayist:

Gary Porter, Executive Director, Constitution Leadership Initiative

May 28, 1830 – President Andrew Jackson Signs Indian Removal Act, Leads to Trail of Tears
Signed into law by President Andrew Jackson in 1830, the Indian Removal Act was intended to grant unsettled lands west of the Mississippi for Indian lands inside existing state borders. Some tribes agreed while others opposed. Thousands of Indians died during the travels to the new territory, leaving what became known as the “Trail of Tears.”

August 21, 1831 – Nat Turner Slave Rebellion Begins
Preparing in early August 1831, Nat Turner, a preacher and slave in Virginia, began planning a revolt against slavery. By August 21, Nat and others with him, first killing his master’s family, mounted horses and continued the same on farms and elsewhere of slave owners and their families. After, the Virginia legislature received petitions urging the menace of slavery be dealt with as a cause of political and economic failure.

April 21, 1836 – Battle of San Jacinto, Mexico Surrenders, Texas Freed
The Texas Revolution began at the Texas Declaration of Independence at Washington-on-the-Brazos in March 1836. The Battle of San Jacinto was very short but events leading up to it were long in the making. After declaring independence, news arrived that the Alamo in San Antonio was under siege. Then Texas General Sam Houston’s troops surprised the Mexican General Santa Anna and his forces, taking Santa Anna prisoner. General Santa Anna surrendered to Sam Houston, and Texas won independence from Mexico, effectively ending the Texas Revolution.

Guest Essayist:

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

May 24, 1844 – Morse Sends First Telegraph Message
In 1844, a telegraph line was set up from Washington, D.C. to Baltimore as an experiment to show how the new electro-magnet messaging system worked. In front of Congress inside the U.S. Capitol, inventor Samuel F.B. Morse sent an electro-magnet signal message using dots and dashes, recorded on a paper tape by tapping, to Alfred Vail at a railroad station in Baltimore. The words of the message Morse sent were “What hath God wrought?” taken from Numbers 23:23 in the Bible, were received and replied to quickly from Vail with the same words. The successful experiment using Morse Code forever changed communications for the nation.

January 24, 1848 – Gold Discovered in California, Gold Rush and Western Expansion
Gold nuggets were found in the Sacramento Valley in January 1848 and by the end of the year, President James Polk confirmed the findings, starting the California Gold Rush. Bringing thousands of miners known as “forty-niners” by the end of 1849, to areas near San Francisco in search of gold, western expansion of the United States boomed.

Guest Essayist:

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

February 2, 1848 – Treaty of Guadalupe Hidalgo Ends Mexican-American War, Annexes West
The Treaty of Guadalupe Hidalgo was signed shortly after James Wilson Marshall discovered gold flakes in the area now known as Sacramento. Border disputes would continue, but the treaty ended the Mexican-American War (1846-1848) and added a large swath of western territory broadly expanding the United States. It would make up Arizona, California, Nevada, New Mexico, Utah, Wyoming, Washington, Oregon, Texas, and parts that would later make up Oklahoma, Colorado, Kansas, Wyoming, and Montana. The new lands acquired from Mexico stirred sectional passions about the expansion of slavery in the West that helped lead to the Civil War after being temporarily settled by the Compromise of 1850.

Guest Essayist:

Dan Morenoff, Executive Director, The Equal Voting Rights Institute

July 14, 1853 – Commodore Matthew Perry Lands in Japan
Sent by President Millard Fillmore, Commodore Matthew Perry went on an expedition to Japan in 1853 to persuade, even pressure, Japan to end its policy of isolation and become open to trade and diplomacy with the United States. Japan signed a treaty with the U.S. in 1854, agreeing to trade and an American consulate. The Treaty of Kanagawa was the first by Japan with a Western nation. Among many accomplishments, Commodore Perry devised a naval apprentice system, assisted the Naval Academy, worked to develop naval officers to their fullest potentials, and helped found the New York Naval Lyceum.

March 20, 1854 – Republican Party Founded
Originally called the “Whig Party” formed in 1834, a meeting by the Whigs was held later in Ripon, Wisconsin to establish a new party in further opposition to the expansion of slavery that the original Whig Party was unable to manage on a national level. Expressly to address an increasing crisis of slavery, the group met and formed what became the Republican Party for the future of the country that wanted individual freedom at its core.

Guest Essayist:

Scot Faulkner, Served as Chief Administrative Officer, U.S. House of Representatives and as a Member of the Reagan White House Staff; Financial Adviser; President, Friends of Harpers Ferry National Historical Park

May 30, 1854 – Kansas-Nebraska Act Signed, Disrupts Years of Sectional Compromise
The Kansas-Nebraska Act of 1854 overturned the Missouri Compromise. The Kansas-Nebraska Act proposed by Stephen A. Douglas, provided that popular sovereignty, a popular vote, would decide whether new states would be free or slave rather than the Missouri Compromise based on the 36°30′ north parallel. Conflicts about slavery grew steadily, leading to the description “Bleeding Kansas” over the volatility. Violence about wanting slavery to remain got so bad, a debate in Congress resulted in South Carolina Representative Preston Brooks severely beat with his cane, abolitionist and Massachusetts Senator Charles Sumner, almost killing him.

Guest Essayist:

Scot Faulkner, Served as Chief Administrative Officer, U.S. House of Representatives and as a Member of the Reagan White House Staff; Financial Adviser; President, Friends of Harpers Ferry National Historical Park

March 6, 1857 – Dred Scott Decision
The Dred Scott Decision is named for the landmark United States Supreme Court case, Dred Scott v. Sandford (1857) (correct spelling is Sanford) first fought in the Missouri Supreme Court in 1852. The nation already deeply divided over the issue of slavery, when Dred Scott sued for his freedom after being moved to states where slavery was prohibited, was denied. U.S. Supreme Court Chief Justice Roger Taney especially refuted that Dred Scott should be free, but Abraham Lincoln repeatedly argued against Justice Taney’s points, noting how the Declaration of Independence set up a free society of self-governing individuals, and the nation was working to eliminate slavery from all of the states so the people could be their own rulers. The misinformed decision was evident, and civil war was not far off.

Guest Essayist:

Joerg Knipprath, Professor of Law, Southwestern Law School; Constituting America Fellow

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

October 16-18, 1859 – John Brown Raid, Catalyst for Civil War
Violence continued to erupt in the region. In 1858, abolitionist John Brown led raids in Kansas to free slaves, killing pro-slavery southerners, then returned home in 1859 to plan a raid at the federal armory in Harpers Ferry, Virginia on October 16, to fight more pro-slavery people. Brown was captured October 18, tried, then hung in December for treason against Virginia. “Bleeding Kansas” and these other acts were part of what only served to fuel an impending civil war. They furthered an inability to rid the nation of the menace of slavery which opposed core moors of the American experiment, the sanctity of personal freedom and the family.

Guest Essayist:

Scot Faulkner, Served as Chief Administrative Officer, U.S. House of Representatives and as a Member of the Reagan White House Staff; Financial Adviser; President, Friends of Harpers Ferry National Historical Park

February 27, 1860 – Abraham Lincoln Delivers Cooper Union Address, Sits for Portrait Believed to Solidify First Republican Presidency
On February 27, 1860, a regional politician named Abraham Lincoln gave the Cooper Union address in New York City. On the same day, Lincoln sat for a portrait by photographer, Mathew Brady. Lincoln claimed those two events made him the first Republican president which led to the end of slavery in the United States.

Guest Essayist:

James D. Best, Author, Tempest at Dawn, a novel about the 1787 Constitutional Convention; and Principled ActionLessons from the Origins of the American Republic

Val Crofts, Social Studies Teacher, Wisconsin; Member, U.S. Semiquincentennial Commission

April 12, 1861 – Battle of Fort Sumter, Civil War Begins
President Abraham Lincoln sent supplies to garrisons for the troops, but on April 12, 1861, Confederates turned the supply convoy back to the Union garrison of Fort Sumter in the seceded state of South Carolina. Shots were fired on Fort Sumter, starting the Civil War. More states would secede, not wishing to participate in the fight in the war fought across the country, and returned to the Union after the northern armies won the war.

Guest Essayist:

Daniel A. Cotter, Attorney and Counselor

May 20, 1862 – President Abraham Lincoln Signs the Homestead Act
The Homestead Act of 1862 encouraged development of farming on land as homesteads for western expansion. Heads of households could receive up to 160 acres to farm for five years, or purchase the land after six months. If homesteaders were unable to farm successfully, the land would go back to the government to be offered again to another homesteader. Pro-slavery groups feared a homestead act would give more power to anti-slavery families moving to new territories of privatized land that could become free states, so they fought passage. 

Guest Essayist:

Daniel A. Cotter, Attorney and Counselor

July 2, 1862 – President Abraham Lincoln Signs the Morrill Act Establishing Land Grant Colleges
In 1862, President Abraham Lincoln signed legislation sponsored by Congressman John Morrill intended to increase higher education across America. Per congressional delegation, 30,000 acres would be provided and the land sold by the states to fund public colleges specifically to train on agriculture and machinery. The act entitled “An Act Donating Public Lands to the Several States and Territories which may provide Colleges for the Benefit of Agriculture and the Mechanic Arts,” was also known as the Land Grant College Act. The Second Morrill Act passed to expand  grants for black institutions for the segregated South. Future acts would offer higher education grants in more fields of study.

Guest Essayist:

Daniel A. Cotter, Attorney and Counselor

September 17, 1862 – Battle of Antietam Prompts Emancipation Proclamation and Ends Potential European Intervention in Civil War
A battle fought in a single day as part of an effort to preserve the Union, the Battle of Antietam also known as the Battle of Sharpsburg, in Northern Virginia, provided a huge breakthrough giving President Abraham Lincoln enough of a victory needed to sign the Emancipation Proclamation several days after the battle ended. Made effective in 1863, the Proclamation led to the total abolition of slavery and applied to Southern states rebelling against freedom for slaves, an even greater part of the war by end of the Battle of Antietam. It also prevented involvement in the Civil War by Europeans many of whom opposed slavery.

Guest Essayist:

Scot Faulkner, Served as Chief Administrative Officer, U.S. House of Representatives and as a Member of the Reagan White House Staff; Financial Adviser; President, Friends of Harpers Ferry National Historical Park

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

July 4, 1863 – Vicksburg Surrenders, Completes Anaconda Plan to Encircle the South
The Anaconda Plan of the Civil War, crafted by U.S. General-in-Chief Winfield Scott, was designed to split and defeat the Confederacy by closing in on the coasts east and south, control the Mississippi River, then attack from all sides. Union Major General Ulysses S. Grant pressed through to take Vicksburg, Mississippi, get the final Confederate strongholds and control the Mississippi River. President Abraham Lincoln believed taking Vicksburg was the key to victory. The Battle at Vicksburg would be the longest military campaign of the Civil War. Vicksburg was surrendered on July 4, 1863.

Guest Essayist:

Daniel A. Cotter, Attorney and Counselor

July 22, 1864 – Fall of Atlanta, Assures President Abraham Lincoln’s Re-election
In the Battle of Atlanta with the first surprise attack on July 22, 1864, General William T. Sherman was determined to take Atlanta, Georgia. Important to the Confederacy, Atlanta was a railroad hub, political, manufacturing and economic area; Savannah was a major sea port. By the battle’s end, Atlanta Mayor James Calhoun surrendered Atlanta to General Sherman who captured the city on September 2, 1864 after a long campaign for the area from May to September. The Battle of Atlanta boosted support for President Abraham Lincoln who was reelected on November 8, 1864.

April 9, 1865 – Confederate General Robert E. Lee Surrenders at Appomattox, Ends Civil War, Begins Healing of the Nation
At Appomattox Court House on April 9, 1865, Confederate General Robert E. Lee surrendered his army to General Ulysses S. Grant, bringing the Civil War lasting from 1861-1865 to a close. President Abraham Lincoln spoke of “malice toward none and charity for all” to “bind up the nation’s wounds.” Victory by the North would bring the end to slavery to begin living out the nation’s declaration that all men are created equal, and should be free. Satisfied with the terms of surrender between Grant and Lee that would help strengthen unity, the nation could begin reconciliation and healing.

Guest Essayist:

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

April 15, 1865 – President Abraham Lincoln Assassinated, Changes Postwar Politics
Only five days after the surrender of Confederate General Robert E. Lee’s surrender at Appomattox, ending the Civil War, President Abraham Lincoln was assassinated in a theater in Washington, D.C. John Wilkes Booth, a Confederate supporter, shot the president succumbed to his wounds the next day. President Andrew Johnson took Lincoln’s place, and was less supportive of Lincoln’s anti-slavery policies, diluting the abolition of slavery Lincoln envisioned. Johnson was in favor of policies that further disenfranchised free blacks, setting political policies that would weaken the nation’s unity.

Guest Essayist:

Gary Porter, Executive Director, Constitution Leadership Initiative

December 6, 1865 – Thirteenth Amendment Ratified, Abolishing Slavery
Shortly before the Civil War’s end, the Thirteenth Amendment, to abolish slavery, was passed in Congress January 31, 1865 then finally ratified December 6, 1865. The Thirteenth Amendment states “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” President Abraham Lincoln so wanted to ensure slavery’s end that he strongly advised the constitutional amendment, one that would also help further sound an alarm concerning division the institution of slavery brought on the nation.

Guest Essayist:

Kyle A. Scott, Ph.D., Board of Trustees, Lone Star College System; Professor of Political Science, University of Houston; Author of The Limits of Politics: Making the Case for Literature in Political Analysis, and The Federalist Papers: A Reader’s Guide

September 5, 1867 – First Texas Cattle Shipped From Abilene
The Chisolm Trail, named after trader and freight hauler, Jesse Chisolm, runs from Texas to Kansas. Cattle drivers would use the trails started by Chisolm, no longer used once railroads were built in Texas. Cattle, introduced to the United States by early explorers from Spain and England or indirectly by way of Mexico, became more in demand after the Civil War, and where railheads were available. In 1867, cattle dealer Joseph McCoy began looking for a way to get Texas cattle to market. When the first herd of cattle arrived in Abilene in August, the first shipment of cattle left for Kansas September 1867 via rail.

October 18, 1867 – Signing of the Alaska Treaty, The Alaska Purchase
Explorers found the region of Alaska rich in natural resources, with particular interest to fur traders. Russian settlement grew, but in 1859, Russia offered to sell Alaska to the United States hoping the U.S. could quell effects of Russia’s greatest Pacific rival, Great Britain. After the Alaska Treaty of purchase was approved by the Senate and signed by President Andrew Johnson, the sale of Alaska by Russia to the U.S. was finalized October 18, 1867. The purchase ended Russia’s presence in North America ensuring the United States’ access to the Pacific north rim. Alaska is known as “The Last Frontier” of the United States.

Guest Essayist:

David J. Shestokas,  Attorney and Former Illinois State Prosecutor; Author of Constitutional Sound Bites, Creating the Declaration of Independence and Cápsulas Informativas Constitucionales, the only Spanish language book explaining America’s Founding Documents.

May 10, 1869 – Golden Spike Completes Transcontinental Railroad, Unites America
Finally connecting east and west of the United States, a ceremonial golden railroad spike was driven in Promontory Summit, Utah where the Union Pacific and Central Pacific railroads met, signifying the finished project. Completion of the transcontinental railroad connecting the coasts relieved westward travelers of long, dangerous wagon journeys. The Pacific Railroad Act of 1862 for public land would help get the transcontinental line completed. Laying about 2,000 miles of track, the project brought major expansion for the United States, and helped to civilize America’s Western frontier.

Guest Essayist:

Brian Pawlowski, Member, American Enterprise Institute’s State Leadership Network; Served as a Marine Corps Intelligence Officer

March 1, 1872 – Yellowstone Becomes First National Park, Begins Park System
In March 1872, President Ulysses S. Grant signed the Yellowstone Act of 1872, also known as the Yellowstone National Park Protection Act, to protect public lands as designated national parklands. Doubt arose regarding advisement of designating land for parks when much of the current goal was to expand economic development in as much of American territory as possible for timber, minerals and other natural resources for expansion. The designation of parklands averted private development. Upon establishing Yellowstone as the first national park, the idea of preserving such lands for enjoyment spread across the country.

Guest Essayist:

Scot Faulkner, Served as Chief Administrative Officer, U.S. House of Representatives and as a Member of the Reagan White House Staff; Financial Adviser; President, Friends of Harpers Ferry National Historical Park

February 14, 1876 – Alexander Graham Bell Files Patent for Telephone
Alexander Graham Bell, son of Visible Speech developer, Melville Bell. After teaching at a school for the deaf in Massachusetts, Alexander realized Morse’s telegraph was a good start and designed one that worked like a telegraph and record player together, allowing speech between two parties. With continued efforts, Bell filed his patent for the development of a working telephone that transferred vibrations magnetically to a distant instrument that received a replicated sound. Filed February 14 and awarded March 7, 1876 as a patent on Improvement on Telegraphy, controversy surrounds timing of Bell’s submission.

June 25-26, 1876 – Battle of Little Bighorn
In 1868, treaties between the Indian tribes and the United States were formed in attempts to prevent conflicts and force Indians to give up lands and move to reservations in the west, but the 1868 Treaty of Fort Laramie meant to protect Indian access to the Black Hills, was broken by miners seeking gold. Fought near the Little Big Horn River in Montana, June of 1876, the Battle of Little Bighorn represented cultural differences between Indian tribes of the Lakota Sioux, Northern Cheyenne, Arapaho, and the agricultural and industrial culture of the United States. Known as the Sioux Wars, the battles were fought over control of Western territory. The Indians won the Battle of Little Bighorn, killing General George Custer and all of his troops, but disputes over territory continued.

Guest Essayist:

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

March 2, 1877 – President Rutherford B. Hayes Electoral Compromise, Southern Reconstruction Ends
Once elected president, Hayes set clear lines in southern policy to eliminate political acts of violence against blacks, and ensure the Civil War amendments protecting their freedoms would be effective. However, the Compromise of 1877 would gain election for Hayes without interference by Democrats if Hayes agreed to pull federal troops from the South. The result would be Democrat control over the South, ending Reconstruction. In a time when the Democratic Party controlled Congress and Republican President Rutherford B. Hayes wanted Reconstruction to solidify more fairness and freedom for blacks in the South, including integrity in elections, his efforts seemed productive, but hampered by the compromise.

Guest Essayist:

Dan Morenoff, Executive Director, The Equal Voting Rights Institute

August 12, 1877 – Thomas Edison Invents Phonograph
Thomas Alva Edison completed work on his first phonograph model in August 1877. While working to improve the telegraph transmitter, he noticed the telegraph machine tape made sounds when running at high speeds. He reasoned putting a needle on the diaphragm of a telephone receiver might make small holes in the tape by piercing it slightly and record sound. He tried applying a hard point to a tinfoil cylinder that, when spun, played back a sample message, “Mary had a little lamb.” He filed for the patent December 24, 1877 and received it February 19, 1878. The industry of recorded sound would develop from Edison’s phonograph.

November 4, 1879 – Thomas Edison Files Patent for Electric Light Bulb
Thomas Alva Edison is credited with 1, 093 patented inventions. Among the most famous are the phonograph, moving picture camera, and incandescent light bulb. With a team of scientists and technicians, Edison tried thousands of theories in attempts to design a long-lasting electric light for a better solution to candles, gas and lighting oils. After working to improve upon prior designs others had tried for many years, he finally found that by using a carbon filament, it worked for a long-burning light. He made further improvements, then filed for a patent November 4, 1789. His patent for the incandescent light bulb was received January 27, 1880.

December 29, 1890 – Wounded Knee Massacre, Also Known as the Battle of Wounded Knee
After the Battle of Little Bighorn, conflict remained. Concern spread about the Ghost Dance movement of the Sioux Indians who believed gods were angered because they did not keep with their traditions, but that a Ghost Dance would protect their customs. As the movement grew, Chief Sitting Bull was arrested by U.S. troops and killed. By December 29, 1890 near Wounded Knee Creek, Chief Big Foot heard about Sitting Bull and moved his people to the Pine Ridge Reservation in South Dakota. By December 29, 1890, Big Foot among approximately 300 Sioux and 25 soldiers died. The massacre ended the Ghost Dance movement and was the last of the Indian Wars.

February 15, 1898 – Battleship Maine Blows Up, Leads to Spanish-American War, America Enters the World Stage
Tensions were mounting between the United States and Spain, sending the battleship Maine to Cuba to protect America’s interests. The U.S.S. Maine was one of the first American battleships, and exploded while in Cuba’s Havana harbor February 15, 1898. Of the 354 crew members, over 260 perished. It is assumed the ship experienced a fire on its own, but an investigation revealed the explosion was caused by a mine though explorers were unsure of the mine’s origin. Subsequently, war was declared against Spain the following April with victory for the U.S. in the Spanish-American War setting America’s future role in foreign policy.

Guest Essayist:

Joerg Knipprath, Professor of Law, Southwestern Law School; Constituting America Fellow

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

December 17, 1903 – Wright Brothers Make First Powered Aircraft Flight
Brothers Orville and Wilbur Wright, aviation pioneers, began testing a glider near Kitty Hawk, North Carolina in 1900. They tested over the next few years to be sure the wing, frame, and steering systems worked. The manned flight on December 17, 1903 was accomplished in a self-propelled, gasoline-powered aircraft with a propeller. After many trials, the two pilots received a patent for their “flying machine” or “Wright Flyer” on May 22, 1906. After the first flight in 1906 that focused on aerodynamics, proving successful their use of design methods including three-axis control, the Wright brothers made a public flight in 1908.

Guest Essayist:

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

April 8, 1913 – Seventeenth Amendment Ratified, Direct Election of Senators
In 1788, as the United States Constitution was adopted, senators would be elected by state legislatures to protect the states from the federal government increasing its own power. Problems related to the election of senators later resulted in lengthy senate vacancies. A popular vote movement began as a solution, but it failed to consider importance of separation of powers as designed by the Framers to protect liberty and maintain stability in government. The popular vote was an attempt to hamper the more deliberative body that is the United States Senate, and succumb to the more passionate, immediate will of the people, so on April 8, 1913, the Seventeenth Amendment to the U.S. Constitution was adopted.

Guest Essayist:

Kyle A. Scott, Ph.D., Board of Trustees, Lone Star College System; Professor of Political Science, University of Houston; Author of The Limits of Politics: Making the Case for Literature in Political Analysis, and The Federalist Papers: A Reader’s Guide

Gary Porter, Executive Director, Constitution Leadership Initiative

August 15, 1914 – Panama Canal Opens
In June 1902, the U.S. Senate passed the Spooner bill to authorize construction of a canal through Panama. In 1903, the United States aided a revolution to help Panama gain independence from Columbia, establishing the Republic of Panama. Before the first world war, all ocean travel between the Atlantic and Pacific Oceans had to route dangerous passages around southern South America. Completed August 15, 1914, the Panama Canal offered a waterway through the isthmus of Panama connecting the oceans, creating fifty miles of sea-level passage. The canal was recognized as one of the seven wonders of the modern world by the American Society of Civil Engineers.

March 3, 1917 – Germany Admits to Authoring the Zimmermann Telegram,  America Enters World War I
The United States found out through British intelligence that a telegram sent by German Foreign Minister Arthur Zimmermann was an attempt to start an alliance with Mexico and Japan in case the United States joined World War I. It was an effort to try and regain southwestern states Mexico lost in the Mexican War of 1846-1848. At first, some thought the message was to pressure the United States into the war. However, by March 3, 1917, Zimmermann confirmed his telegram’s purpose, and America was then set against Germany for certain ensuring entry of the United States into World War I.

Guest Essayist:

Scot Faulkner, Served as Chief Administrative Officer, U.S. House of Representatives and as a Member of the Reagan White House Staff; Financial Adviser; President, Friends of Harpers Ferry National Historical Park

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

August 18, 1920 – Nineteenth Amendment Ratified, Women Gain Right to Vote
Meeting in Seneca Falls, New York in 1848, Elizabeth Cady Stanton, a national leader for women’s suffrage, along with Lucretia Mott, was joined by Susan B. Anthony known as the mother of women’s suffrage, and whom the amendment is named after as the “Susan B. Anthony Amendment.” These ladies worked to engage the public and lobby Congress for women to vote. First introduced in Congress in 1878, the constitutional amendment was ratified August 18, 1920, and signed by Secretary of State, Bainbridge Colby on August 26, 1920. Decades in the making, the Nineteenth Amendment to the United States Constitution finally passed, guaranteeing women the right to vote, also known as women’s suffrage.

Guest Essayist:

The Honorable Michael Warren, Presiding Judge, General Civil/Criminal Division of the 6th Circuit Court, Oakland County, Michigan

September 3, 1928 – Philo Farnsworth Transmits First Electronic Television Broadcast
An admirer of inventors Bell, Edison, and Einstein’s theories, scientist and inventor Philo T. Farnsworth designed the first electric television based on an idea he sketched in a high school chemistry class. He studied and learned some success was gained with transmitting and projecting images. While plowing fields, Farnsworth realized television could become a system of horizontal lines, breaking up images, but forming an electronic picture of solid images. Despite attempts by competitors to impede Farnsworth’s original inventions, in 1928, Farnsworth presented his idea for a television to reporters in Hollywood, launching him into more successful efforts that would revolutionize moving pictures.

October 28, 1929 – Black Monday, Stock Market Crash
From 1927, investors saw the economy booming and many bought stocks on credit believing quick sales of those stocks would yield easy returns. By 1929, the American economy was growing rapidly, business investments with it, appearing unlimited. People sold their stocks quickly and values fell fast. This downturn was the major crash that brought on what was called Black Monday on October 28, 1929, then Black Tuesday with a complete fallout. The stock market continued to plunge and could not recover. The crash was blamed on too rapid growth causing a bubble of overvalued stocks. The economy slowed but the stock market did not show it. The more people sold their stocks to regain losses the more the market declined bringing a loss of confidence in investing.

March 4, 1933 – President Franklin D. Roosevelt Inaugurated, Begins “Hundred Days” Government Expansion
While the stock market crash of 1928 was credited with spurring the Great Depression, it did so in part. President Herbert Hoover made efforts to repair banking problems and restore stability with government intervention worsened by the New Deal programs implemented by President Franklin D. Roosevelt. Unfortunately, hopes for the New Deal’s Hundred Days of government control proved to shrink opportunities for the market to recover on its own. Instead of supporting market protections to stabilize, as America’s Founders envisioned, New Deal programs including court-packing prolonged the Depression, stifling options for investments or lasting consumer confidence for developing industry.

December 7, 1941 – Japan Attacks Pearl Harbor, America Enters World War II
On the morning of December 7, 1941, Japanese planes bombed Pearl Harbor, the United States naval base in Oahu, Hawaii, with a surprise attack. The planes fired upon the base for almost two hours. Over 2,400 Americans died, another 1,000 plus injured, service members and civilians. The U.S. Pacific fleet was destroyed. Japan wanted imperial expansion, continually in conflict with the United States and over Chinese markets and Asian policy. On December 8, President Franklin D. Roosevelt called on Congress to declare war on Japan, describing the attack on Pearl Harbor as “a date which will live in infamy.” The attack marked the United States entrance into World War II.

Guest Essayist:

Joshua Schmid, Program Analyst, Bill of Rights Institute

August 6, 1945 – America Drops Atom Bomb on Hiroshima, Nuclear Age Begins
During World War II (1939-1945), the United States dropped an atomic bomb over Hiroshima, Japan, leaving an enormous mushroom cloud and massive destruction on August 6, 1945. President Harry Truman advised using the bomb to quickly end the war. The United States was working to develop an atomic weapon begun by the U.S. Army Corps of Engineers with the Manhattan Project, and had warning that Nazi Germany was working on nuclear options. The bombing wiped out most of Hiroshima. Similar was done over Nagasaki soon after. It is believed around 70,000 died initially and total deaths were at least 200,000 including later casualties from radiation and related illnesses. On August 14, Japan surrendered.

Guest Essayist:

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

June 24, 1948 – Beginning of Berlin Airlift, Cold War Begins
After the bombings on Japan, the Cold War stage was set, ignited by deteriorating relations between the United States and the communist Soviet Union. When Germany was defeated by the end of World War II in 1945, it was divided into occupations by the United States, Britain, France and the Soviet Union. On June 24, 1948, Soviet and communist leader Josef Stalin attempted to control East German land by cutting off routes to drive allied nations out of Berlin, the capital of Germany. The blockade was pushback against America and Britain for impeding Russian involvement in Germany’s economic plans. The United States airlifted food and other supplies by plane to people in West Berlin, as President Harry Truman wanted to avoid another world war. The Soviet blockade and attempt to isolate and starve the people of Berlin failed, but the Cold War persisted.

Guest Essayist:

The Honorable Don Ritter, Former Congressman, 15th Congressional District, State of Pennsylvania

December 2, 1948 – Whittaker Chambers Exposes Alger Hiss as a Spy With Pumpkin Papers
Subpoenaed in August 1948 by the House Un-American Activities Committee (HUAC) in Congress, Whittaker Chambers, on December 2, 1948, revealed two rolls of undeveloped microfilm hidden in a hollowed-out pumpkin on his Maryland farm, thus the name “Pumpkin Papers.” The microfilm contained evidence that Chambers would present against Alger Hiss, Communist Party member, who was later convicted in 1950 for perjury about being a spy for the Soviets. The evidence showed that Hiss passed papers with information to Chambers for delivery to the Soviets. Chambers had been involved with the Communist Party, but left it, realizing the truth about Josef Stalin and his Soviet regime of communist tyranny.

Guest Essayist:

The Honorable Don Ritter, Former Congressman, 15th Congressional District, State of Pennsylvania

June 25, 1950 – North Korean Forces Invade South Korea, Korean War Begins
By the end of World War II, Korea, formerly controlled by Japan, was divided into North Korea that ended up supported by the Soviet government under communism and South Korea supported by the United States under a capitalist government. The United States made efforts to contain communism after World War II, but unrest over the spread of communism by the Soviet Union remained, including in Asia. Attempts to unify North and South Korea were failing and on June 25, 1950, North Korea invaded South Korea. The United States entered the Korean War with resolve to prevent communism from infecting peace gained at home and abroad.

Guest Essayist:

The Honorable Don Ritter, Former Congressman, 15th Congressional District, State of Pennsylvania

June 19, 1953 – Rosenbergs (Spies) Executed
Julius Rosenberg of New York became an engineer stationed at the Army Signal Corps Engineering Laboratory in New Jersey during World War II. Reports showed the Soviet Secret Police asked him to steal classified American plans for a guided missile system. His wife Ethel had her brother, David Greenglass, who was stationed at the Los Alamos National Laboratory in New Mexico, steal information on American nuclear bomb plans for a Soviet spy. Accused of leading a spy ring to sell classified government secrets regarding the atomic bomb to the Soviet Union, Julius and Ethel Rosenberg, devoted to the Communist Party, were tried and found guilty of espionage. Appeals failed. They were executed for their crimes on June 19, 1953.

Guest Essayist:

The Honorable Don Ritter, Former Congressman, 15th Congressional District, State of Pennsylvania

May 17, 1954 – Brown v. Board of Education
Five cases about segregated schools were eventually consolidated into the landmark Supreme Court case, Brown v. Board of Education of Topeka, Kansas in attempts to stop segregation of black and white students not only in schools, but segregation in general. On May 17, 1954, Supreme Court Justice Earl Warren delivered the unanimous ruling that segregation was not “separate but equal,” and was unconstitutional. The case brought attention to needed growth of desegregation in the following years, and influenced the Civil Rights Movement resulting in the Civil Rights Act of 1964 that banned segregation in all public facilities, and the Voting Rights Act of 1965 outlawing voting restrictions based on race.

Guest Essayist:

Dan Morenoff, Executive Director, The Equal Voting Rights Institute

June 29, 1956 – President Dwight D. Eisenhower Signs Federal Aid Highway Act to Establish Interstate System
When Dwight Eisenhower was a lieutenant colonel in the United States Army, he was part of a convoy traveling across the United States on the nation’s old roads. During World War II, Eisenhower learned of the Reichsautobahn system in Germany. These events inspired him to design a highway system in the United States for the interest of American citizens and national defense. As president of the United States, a top priority for Eisenhower was to have Congress authorize the Federal Aid Highway Act signed into law June 29, 1956. Known as the Dwight D. Eisenhower National System of Interstate and Defense Highways, it makes up about 47,000 miles of highway in every state and Puerto Rico.

Guest Essayist:

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

July 30, 1956 – President Dwight D. Eisenhower Signs Law Establishing “In God We Trust” on Currency
While speaking on June 14, 1954, Flag Day, President Dwight D. Eisenhower talked about the importance of reaffirming religious faith in America’s heritage and future, that doing so would “constantly strengthen those spiritual weapons which forever will be our country’s most powerful resource, in peace or in war.” In 1864 during the Civil War, the phrase “In God We Trust” first appeared on U.S. coins. On July 30, 1956, “In God We Trust” became the nation’s motto as President Eisenhower signed into law a bill declaring it along with having the motto printed in capital letters on every United States denomination of paper currency.

Guest Essayist:

Gary Porter, Executive Director, Constitution Leadership Initiative

October 4, 1957 – USSR Launches Sputnik, Shocks U.S. Into Space Age
The Soviet Union launched a new satellite on October 4, 1957 that turned out to be the first successful technological, scientific development of its kind. A small satellite, called Sputnik, with shape and size likened to that of a beach ball weighed less than 200 pounds and took about an hour and a half to orbit the earth. The new satellite also brought with it notice of new political and military developments. Following the Sputnik launch, concerns increased regarding Soviet ability to launch ballistic missiles capable of carrying nuclear weapons. The Sputnik satellite was a surprise to the world, marked the beginning of the space age, and the space race, especially between the United States and the Soviet Union.

Guest Essayist:

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

October 28, 1962 – Cuban Missile Crisis Ends, Affects U.S. Policy for Decades
The Cuban Missile Crisis of 1962 was a confrontation during the Cold War between the United States and the Soviet Union. It resulted in Soviet General Secretary Nikita Khrushchev making an agreement with Cuban premier Fidel Castro to place nuclear missiles in Cuba. Before Khrushchev’s October 28, 1962 statement saying the Soviet missiles would be dismantled and removed, on October 22, to avert nuclear war, President John F. Kennedy directed a “quarantine” to prevent a nuclear offensive against Western nations to ensure Cuba would not be used as a launch site for a Soviet attack admonishing “Our goal is not the victory of might but the vindication of right – not peace at the expense of freedom, but both peace and freedom, here in this Hemisphere and, we hope, around the world. God willing, that goal will be achieved.”

Guest Essayist:

Joshua Schmid, Program Analyst, Bill of Rights Institute

May 7, 1964 – President Lyndon B. Johnson Speech Launches Great Society Government Expansion
After years of war and loss of President John F. Kennedy, President Lyndon B. Johnson wanted to carry out some of the plans President Kennedy envisioned, and help restore the nation. In a speech at Ohio University May 7, 1964, the Great Society idea first presented by President Johnson started as social reform for education, poverty, civil rights, and others. Some commended it, but others resented the amount of government intrusion in Americans’ lives including encroachment on personal liberty and parental rights, roles of charities and churches to be taken over by government control. Many viewed the results as having cost more than delivered, only creating enormous bureaucracies rather than lasting, effective solutions. 

July 2, 1964 – President Lyndon B. Johnson Signs Civil Rights Act of 1964
President Lyndon B. Johnson signed the Civil Rights Act of 1964 on July 2, a  law banning segregation in public places and discrimination based on race, color, national origin, or religion or sex. The South opposed earlier attempts at civil rights legislation, but advances were finally made. Not long before his assassination in 1963, President Kennedy proposed stronger legislation and said the nation “will not be fully free until all its citizens are free.” After lengthy Democrat filibuster in the Senate, the bill was finally passed 73-27 and sent to the desk of President Johnson.

Guest Essayist:

Dan Morenoff, Executive Director, The Equal Voting Rights Institute

August 7, 1964 – Gulf of Tonkin Resolution
Congress passed the Gulf of Tonkin Resolution on August 7, 1964 authorizing President Lyndon B. Johnson to take any measures necessary to promote international peace and security in southeast Asia. This act led to the first major military escalation by the United States in the ongoing war: Operation Rolling Thunder in February 1965. This was an important move, as it led to a sharp rise in U.S. casualties, anti-war protests, rise of the New Left including identity politics, and other social reforms.

August 6, 1965 – President Lyndon B. Johnson Signs Voting Rights Act of 1965
President Lyndon B. Johnson went further on the Civil Rights Act of 1964 by urging Congress to pass the Voting Rights Act of 1965 which guaranteed African Americans the right to vote. The bill made illegal any restrictions on the local, state or federal levels that denied blacks their right to vote. It was designed to ensure the Fifteenth Amendment on voting rights could not be hindered. Though voting by blacks was still challenged or ignored especially in Southern states, signed by President Johnson on August 6, 1965, their voter turnout increased and blacks were able to speak up about voting illegal restrictions and become more involved in American civic opportunities.

Guest Essayist:

Dan Morenoff, Executive Director, The Equal Voting Rights Institute

July 20, 1969 – U.S. Lands on Moon, Wins Space Race
“That’s one small step for man, one giant leap for mankind.” Astronaut Neil Armstrong spoke those words after being the first man to step onto the moon’s surface July 20, 1969. From Cape Kennedy (formerly Cape Canaveral) July 16, 1969, Neil Armstrong, Apollo 11 mission commander with Edwin “Buzz” Aldrin, lunar module pilot, and Michael Collins, command module pilot, left on the Apollo 11 mission lunar module Eagle to complete the first moon landing and return to earth, a national goal set by President John F. Kennedy in 1961. Following World War II, the space race became a competition for technology to show superiority and the greatest military strength. The winner would impact sustaining of the free world.

Guest Essayist:

Danny de Gracia, News Contributor, Political Scientist, Novelist, Internationally Published Author

August 9, 1974 – Richard M. Nixon Resigns as President, Ending Watergate Scandal
What became known as the Watergate scandal involved a break-in, to track phone conversations, of the Democrat National Committee in the Watergate building in Washington, D.C. Initial arrests in 1972 led to further indictments in the Nixon administration. Avoiding impeachment, on August 8, 1974, Richard M. Nixon announced he would resign as president of the United States and formally left office on August 9. In efforts to heal and keep the nation focused, the new president, Gerald R. Ford, pardoned President Nixon. While others committed similar acts attempting to gain election in political campaigns prior to Watergate, the American people would spurn such behavior as unacceptable by either party.

Guest Essayist:

Joerg Knipprath, Professor of Law, Southwestern Law School; Constituting America Fellow

April 30, 1975 – Fall of Saigon – America Losing Cold War Until President Ronald Reagan Elected
The Vietnam War ended when the capital of non-communist South Vietnam, Saigon, fell to the Communists. This occurred shortly after Congress cut off aid to South Vietnam, over the objections of the Ford Administration. The triumph of the Communist regime in Vietnam was one of the most important victories for its main ally, the Soviet Union, in the Cold War with the United States.

Guest Essayist:

The Honorable Don Ritter, Former Congressman, 15th Congressional District, State of Pennsylvania

November 4, 1979 – Iranian Hostage Crisis Begins
Iranians entered the United States Embassy in Tehran, a province of Iran, November 4, 1979 capturing 66 people, the total released January 20, 1981. They were held 444 days. The Iranian hostage crisis started under already strained relations when President Jimmy Carter allowed the Shah of Iran into the United States for medical treatment, sparking further protests and ultimately the taking of hostages in Iran. Iranians saw the Shah as a brutal dictator and America as approving of his actions by helping him. The hostage crisis formed a solid view by America, influencing United States foreign policy to this day, that the Islamic Republic is a defiant regime that mocks international law and universal moral principles.

Guest Essayist:

Scot Faulkner, Served as Chief Administrative Officer, U.S. House of Representatives and as a Member of the Reagan White House Staff; Financial Adviser; President, Friends of Harpers Ferry National Historical Park

November 4, 1980 – President Ronald Reagan Elected, Modern Conservatism Ascends to Power
With losses from the New Deal policies, Cold War, Iranian hostage crisis and other issues weakening national stability, America’s confidence wore thin. The November 1980 presidential election would bring knowledge Ronald Reagan gained into America’s need for economic strength, national security and leadership on the world’s stage. Reagan’s Hollywood and military career not only helped him be known as “The Great Communicator,” but, more importantly, set in motion Reagan’s ability to address the corrosive effects of Socialist and Communist activism. Upon election of Reagan as president, conservatism grew and the United States began to recover.

Guest Essayist:

Scot Faulkner, Served as Chief Administrative Officer, U.S. House of Representatives and as a Member of the Reagan White House Staff; Financial Adviser; President, Friends of Harpers Ferry National Historical Park

November 9, 1989 – Berlin Wall Torn Down, End of Cold War, America Wins
In 1982, President Ronald Reagan noted threats due to enormous power of the modern state, how history teaches dangers of government overreach, how political control taking precedence over free economic growth using secret police and mindless bureaucracy stifle individual excellence and freedom. He observed it in Soviet leader Mikhail Gorbachev’s forced socialism. President Reagan, though some U.S. successes were in place, envisioned bolder strategies for “peace through strength” vital to win the Cold War that would last from the end of World War II in 1945 to 1991 when the Soviet Union dissolved. On November 9, 1989, President Reagan stood at the Berlin Wall challenging Gorbachev “Mr. Gorbachev–tear down this wall!” Margaret Thatcher said of the result that “Reagan won the Cold War without firing a shot.”

Guest Essayist:

Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow

The Honorable Don Ritter, Former Congressman, 15th Congressional District, State of Pennsylvania

September 11, 2001 – Islamic Terrorists Attack New York City and Washington, D.C.
On September 11, 2001, 19 Islamic terrorists from Saudi Arabia and other Arab nations hijacked four airplanes to attack the United States. They flew two planes into the World Trade Center in New York. Another hit the Pentagon near Washington, D.C., and the fourth was taken back by American heroes and crashed into a field in Pennsylvania. Nearly 3,000 people were killed with many more, including first responders, suffering from related illnesses after. President George W. Bush stated “Any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime.” When the Taliban refused to cooperate, Operation Enduring Freedom launched, plus other counterterrorism measures, to defeat Osama bin Laden, Al-Qaeda and all associated terrorists.

Guest Essayist:

The Honorable Michael Warren, Presiding Judge, General Civil/Criminal Division of the 6th Circuit Court, Oakland County, Michigan

March 23, 2010 – President Barack H. Obama Signs Affordable Care Act
The Patient Protection and Affordable Care Act signed into law by President Barack H. Obama on March 23, 2010 had humanitarian intentions to expand healthcare insurance coverage and Medicaid eligibility, lessen growth of Medicare payments, and increase other taxes. The new law mandated, or forced, purchase of individual healthcare controlled by the government. However, problems the law created included cancelling competitive health care insurance that worked for many, replacing them with taxpayer funded health plans at higher costs with limited care and coverage that did not fit especially for the cost. Surrounding arguments included constitutionality of forcing Americans to buy insurance, calling it an unconstitutional tax and socialized medicine.

Guest Essayist:

Joerg Knipprath, Professor of Law, Southwestern Law School; Constituting America Fellow

November 8, 2016 – Donald Trump Elected President of the United States
Donald J. Trump, a businessman from New York, was elected the 45th president and Governor Mike Pence of Indiana as vice president on November 8, 2016. President Trump was elected having no prior political experience which earned him credibility as being closer to the American people, one who would serve the United States through leadership rather than an aloof politician controlled by bureaucracy. History to be written about current United States presidents will reveal stark, but familiar differences in views about how America succeeds as a free and prosperous nation. These revelations prove what works and does not work for the persistence of the American experiment as the world watches on.

Guest Essayist:

David J. Shestokas,  Attorney and Former Illinois State Prosecutor; Author of Constitutional Sound Bites, Creating the Declaration of Independence and Cápsulas Informativas Constitucionales, the only Spanish language book explaining America’s Founding Documents.

Conclusion

Guest Essayist:

TBA

 

Guest Essayist: Brad Bergford

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Utah has a fascinating history from the days before it was a United States territory to today. The first Europeans arrived in the area in 1765. In 1821, Mexico won its independence from Spain and claimed Utah for itself. In 1832, Antoine Robidoux built the first trading post in Utah, and in 1841, John Bartleson led the first wagon train across Utah to California. During the 1800s, Utah bore the indicia of western expansion. Many regard the completion of the transcontinental railroad at Promontory Summit, Utah, on May 10, 1869 as not only one of the most important historical events in Utah, but also one of the most momentous in U.S. history.

Utah stands unique in its history and traditions, and it cannot be understood apart from the influence of Church of Jesus Christ of Latter-Day Saints (the “LDS church”) and its adherents, the Mormons. Utah’s path to statehood began principally because of precipitous settlement by Mormons, who moved west after failed settlement attempts in New York, Illinois, and, most notably, in Jackson County, Missouri, where they had intended to establish an everlasting temple. In 1847, Brigham Young, by then the leader of the main branch of the LDS church, entered the Salt Lake Valley with 148 comrades and founded Salt Lake City. At the time, the area was part of Mexico, but early in 1848 through the Treaty of Guadalupe Hidalgo, Mexico ceded 525,000 square miles, including present-day Utah, to the United States.

In 1849, Brigham Young took a delegation to Washington, D.C. to propose a massive new state called “Deseret” that would have included all of present-day Utah, virtually all of present-day Nevada, and parts of Colorado, California, Arizona, New Mexico, Oregon, Wyoming, and Idaho. Congress established Utah territory, which was much larger than present-day Utah but smaller than “Deseret” as part of the Compromise of 1850, which also allowed the territories of Utah and New Mexico to each decide whether to permit slavery. Utah approved slave ownership only by white people but not by Mexicans. Many residents purchased “Indian” slaves with the encouragement of the LDS church, and some settlers brought African slaves with them to Salt Lake City. In that same year, President Fillmore named Brigham Young the territorial governor. Over the next two decades, settlers—primarily Mormons—traveled to Utah by wagon train. Some reports are that settlers encountered hostility from native peoples. Other reports are that native peoples assisted settlers. In any case, Utah’s new settlers wished to enjoy the benefits of statehood, including federal government protection.

American sentiment outside of Utah was decidedly against the practice of polygamy, which the LDS church regarded as a central aspect of religious life. Several times the United States Congress passed laws aimed at abolishing the practice, which some compared to slavery. Republican opposition to LDS control and practices in Utah—chiefly slavery and polygamy—delayed Utah’s statehood by 46 years. In 1879, the Supreme Court unanimously held in Reynolds v. United States (98 US 145), that Congress could outlaw polygamy and that the Constitution does not protect that practice. Over the next decade, many men were convicted under federal anti-polygamy laws. In 1890, and apparently in direct response to another loss at the Supreme Court, this one involving a constitutional challenge to the Edmunds-Tucker Act, which responded to the practice of polygamy by allowing the disincorporation of the LDS Church and the federal seizure of LDS property, the LDS president issued what Mormons call the Manifesto. It indicated that for the good of the LDS church, Mormons must abandon the practice of polygamy. In 1896, Utah was granted statehood.

Utah makes the forty-fifth state to ratify the U.S. Constitution, admitting it to the Union January 4, 1896. Utah became known as “The Beehive State” and currently uses the Utah State Constitution adopted in 1896.

Utah offers much in the way of outdoor adventure and cultural attraction. It offers five national parks: Zion (1919), Arches (1971), Bryce (1928), Capital Reef (1971) and Canyonlands (1974), and it boasts other outdoor attractions, including Moab, the Colorado River, and Lake Powell. Important cultural attractions include skiing and visiting the Mormon Tabernacle (not to be confused with the Mormon Temple, which bars non-LDS visitors). In the early 20th century, auto racing in the Bonneville Salt Flats became popular, and car manufacturers have frequently used the site for commercials. Park City hosted the 2002 Winter Olympic Games and hosts the annual Sundance Film Festival. Brigham Young University is widely renowned for its academic excellence in many areas. The Utah Jazz is the state’s only major professional sports team and many Utahans are rabid Jazz fans.

The Utah Governor’s Office of Economic Development lists aerospace and defense, life sciences, financial services, energy, outdoor products and recreation, and software as key industries. Today, a third of the world’s Mormons live in Utah, but demographics in Utah are changing. The population of Salt Lake City is now only 48% Mormon, although Utah’s total population is still about 61% Mormon. Some of the trend is due to population influx because of Utah’s hot economy (4th fastest growing economy in the U.S.), and some is attributed to Mormons intentionally spreading their influence by moving away from Utah. The state legislature features overwhelming Republican representation, although almost all of Salt Lake City’s elected representatives are Democrats. It appears that Utah will continue to provide a unique picture of cultural development to go along with its stunning landscape.

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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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Guest Essayist: The Honorable Michael Warren

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Executive Branch

The executive power of the United States is vested in the president who is elected pursuant to the electoral college.41 The electors of each state are chosen by a method of selection determined by the state legislature. Each elector has two votes, one each for president and vice president (who run as a slate).42 The president and vice president each serve four-year terms, and are limited to two full terms.43 The vice president also serves as the president of the Senate, and has no vote unless there is a tie.44 No other federal executive offices are addressed in the U.S. Constitution. To be president, a person must be a natural-born citizen, at least 35 years old, and have been a resident in the United States for at least 14 years.45 The president is, among other things, the commander in chief of the armed forces.46 He or she has the power to grant reprieves and pardons (except for cases of impeachment), make treaties (subject to a two-thirds approval of the Senate), and appoint federal judges (subject to the advice and consent of the Senate).47 He or she has the duty to ensure that the laws are faithfully executed.48

The executive power of the State of Michigan is vested in the governor.49 The governor and lieutenant governor serve four-year terms, with a maximum of two terms.50 The governor is elected in the general election of alternate even-numbered years.51 Candidates for lieutenant governor are nominated by party conventions.52 “In the general election one vote shall be cast jointly for the candidates of governor and lieutenant governor nominated by the same party.”53 The governor supervises each “principal department … unless otherwise provided by” the Constitution.54 The governor is also to “take care that the laws be faithfully executed.”55 Furthermore, the Michigan Constitution has a negative advice and consent clause – any gubernatorial appointments take effect unless a majority of the state Senate votes to disapprove the appointment.56 The governor has the authority to remove or suspend “any elective or appointive state officer, except legislative or judicial,” for “gross negligence of duty or for corrupt conduct in office, or for any other misfeasance or malfeasance therein …  .”57 Like the president, the governor is the commander in chief of the armed forces.58 He or she also has the authority to grant “reprieves, commutations and pardons for all offenses, except in cases of impeachment,” but that power is subject to the procedures and regulations provided by law.59 The governor has the duty to submit to the Legislature a balanced budget and appropriation bills.60 Like the vice president, the lieutenant governor is president of the Senate, without a vote except in cases of a tie.61 To be governor or lieutenant governor, a person must be 30 years old and have been a voter in the state for the four years “next preceding his election.”62 The attorney general and secretary of state are likewise elected for four-year terms at the same time as the governor, with a maximum of two terms.63 Like the lieutenant governor, the attorney general and secretary of state are nominated at state party conventions.64

Unlike the U.S. Constitution, the Michigan Constitution addresses in detail the administrative state over which the governor presides. For example, there are no more than “20 principal departments. They shall be grouped as far as practicable according to major purposes.”65 In addition, unless legislatively vetoed, the governor has plenary authority to reorganize the executive branch via executive order.66

The Michigan Constitution also establishes a statewide elected state board of education;67 elected statewide boards for the University of Michigan, Wayne State University, and Michigan State University;68 an appointed civil rights commission;69 an appointed state transportation commission;70 a Michigan nongame fish and wildlife trust fund;71 a Michigan game and fish protection fund;72 a Michigan conservation and recreation legacy fund;73 a Michigan veterans trust fund;74 and a Michigan natural resources trust fund.75

Judicial Branch

The judicial power of the United States is vested in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”76 All federal judges have life terms, subject to being in “good Behavior.”77 The jurisdiction of the federal courts includes all cases arising under the U.S. Constitution, federal law, treaties, foreign relations, admiralty and maritime, and controversies between the states.78

In Michigan the “judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by two-thirds vote of the members elected to and serving in each house.”79 The Supreme Court has seven members, serving eight-year terms with staggered elections.80 The Supreme Court is nonpartisan, and “Nominations for justices of the supreme court shall be in a manner prescribed by law.”81 However, an incumbent may be placed on the ballot simply by filing an affidavit of candidacy.82 The Supreme Court chooses its own chief justice, and he or she “shall perform duties required by the court.”83 The Supreme Court must appoint “an administrator of the courts and other assistants of the supreme court as may be necessary to aid in the administration of the courts of this state.”84 The Supreme Court possesses “general superintending control over all courts … and appellate jurisdiction as provided by rules of the supreme court,”85 and rulemaking authority over the “practice and procedure in all courts of this state.”86 Although the Supreme Court “shall not have the power to remove a judge,”87 it may do so pursuant to judicial tenure proceedings.88 “Decisions of the supreme court, including all decisions on prerogative writs, shall be in writing and shall contain a concise statement of the facts and reasons for each decision and reasons for each denial of leave to appeal. “When a judge dissents in whole or in part he shall give in writing the reasons for his dissent.”89 The Constitution also establishes a court of appeals, with the number of judges determined by law.90 Court of Appeals judges serve six-year terms, elected in staggered terms.91 They are elected in nonpartisan elections “from districts drawn on county lines and as nearly as possible of equal population, as provided by law.”92 The jurisdiction of the court of appeals is determined by law.93 Circuit courts are established along county lines, with a minimum of one judge per circuit, as provided by law.94 Circuit courts must conduct sessions at least four times a year, and the number of judges for each circuit is also established by law.95 Circuit court judges are nominated and elected in staggered (by circuit) non-partisan elections for six-year terms, and must live in the circuit to which they are elected.96 Circuit courts have “original jurisdiction in all matters not prohibited by law; appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law; power to issue, hear and determine prerogative and remedial writs; supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with the rules of the supreme court; and jurisdiction of other cases and matters as provided by the rules of the supreme court.”97 Probate judges are also established and follow the same elective and qualification procedures as circuit court judges.98 To serve as a judge, an individual must have been admitted to practice law for at least five years, and cannot be elected or appointed after reaching 70 years old.99 Judges are also ineligible to be “nominated for or elected to an elective office other than a judicial office during the period of his service and for one year thereafter.”100

Additional Provisions

The Michigan Constitution takes great care to address taxes and fiscal matters,101 local government,102 elections103 and many other matters. These matters are left to the states in the U.S. Constitution.104 Both constitutions have extensive protection of individual rights105 – a topic that could consume hundreds of pages of commentary and review.

The differences between our two constitutions are quite intense – revealing the origins and philosophies undergirding each. Understanding their differences gives us a deeper appreciation for the value they provide and any potential imperfections. Simply put, the U.S. and Michigan constitutions have a profound impact on our daily lives, significantly differ in scope and detail, and are well worth learning if we intend to preserve our liberties and freedoms.

Hon. Michael Warren has served on the Oakland County Circuit Court since 2002, and teaches constitutional law at Western Michigan University Cooley Law School. He is a former member of the state board of education, co-creator of Patriot Week (www.PatriotWeek.org), and author of America’s Survival Guide: How to Stop America’s Impending Suicide by Reclaiming Our First Principles and History. 

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Footnotes

41     Article II, Section 1.

42     Article II, Sections 1 and Amendment XII.

43     Article II, Section 1 and Amendment XXII.

44     Article I, Section 3.

45     Article II, Section 1.

46     Article II, Section 2.

47     Id.

48     Article II, Section 3.

49     Article 5, Section 1.

50     Article 5, Section 21.

51     Article 5, Section 21.

52     Article 5, Section 21.

53     Article 5, Section 21.

54     Article 5, Section 8.

55     Article 5 Section 8.

56     Article 5, Section 6.

57     Article 5, Section 8.

58     Article 5, Section 12.

59     Article 5, Section 14.

60     Article V, Section 18.

61     Article V, Section 25.

62     Article V, Section 22.

63     Article V, Section 21.

64     Article V, Section 21.

65     Article 5, Section 2.

66     Article 5, Section 2.

67     Article VIII, Section 3.

68     Article VIII, Section 5.

69     Article V, Section 29.

70     Article V, Section 28.

71     Article IX, Section 42.

72     Article IX, Section 41.

73     Article IX, Section 40.

74     Article IX, Sections 37-39.

75     Article IX, Section 35.

76     Article III, Section 1.

77     Article III, Section 1.

78     Article III, Section 2.

79     Article VI, Section 1.

80     Article VI, Section 2.

81     Article VI, Section 2.

82     Article VI, Section 2.

83     Article VI, Section 3.

84     Article VI, Section 3.

85     Article VI, Section 4.

86     Article VI, Section 5.

87     Article VI, Section 4.

88     Article VI, Section 30.

89     Article VI, Section 6.

90     Article VI, Section 8.

91     Article VI, Section 9.

92     Article VI, Section 8.

93     Article VI, Section 10.

94     Article VI, Section 11.

95     Article VI, Section 11.

96     Article VI, Section 12.

97     Article VI, Section 13.

98     Article VI, Section 15.

99     Article VI, Section 19.

100   Article VI, Section 20.

101   See, e.g., Article VII, Section 21; Article IX.

102   See, e.g., Article VII.

103   See, e.g., Article II.

104   Amendments IX-X.

105   See, e.g., United States Constitution, Amendments I-IX; Mich Const 1963, Article I.

Guest Essayist: The Honorable Michael Warren

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When one is tasked to write about “the constitution,” my guess is not many ponder a threshold question: “Which constitution?” With the anniversary of the signing of the United States Constitution occurring on September 17 (dubbed “Constitution Day” – and also an anchor date for Patriot Week), one might naturally think the U.S. Constitution must be the topic. Not necessarily so. Because each state also has a constitution, each person lives under two constitutions. Few people understand the U.S. Constitution well, and only a minute number understand their state constitution. As a former debater, I appreciate that one should understand both sides of an issue to become deeply informed. Likewise, to best understand our constitutions, the best course may be to compare and contrast them. Accordingly, this article will review the basic contours of the constitutions of the State of Michigan and the United States to discern their commonalities and yawning differences. By necessity of space and time, this article will only address a few high-level topics such as age, origins, amendment process and the branches of government, and will not delve into the wonderful commentary that this comparison might yield.

Age

The U.S. Constitution was drafted in 1787 and ratified in 1789. The current Michigan Constitution was drafted in 1961 and adopted in 1963.

Predecessors

The U.S. Constitution was preceded by the Articles of Confederation and Perpetual Union, which was drafted by the Second Continental Congress in 1777 and effective in 1781. The current Michigan Constitution was preceded by the Michigan Constitution of 1835, the Michigan Constitution of 1850, and the Michigan Constitution of 1908.

Drafting Process

The U.S. Constitution was drafted pursuant to a constitutional convention held in Philadelphia during the summer of 1787. Each state appointed its own delegates. Although there were 55 delegates, each state’s delegation counted as only one vote. The majority of each state’s delegation would determine the vote of the state (i.e., if a delegation of three members split 2-1 in favor of a measure, that state’s single vote would be cast in favor of the measure). George Washington presided over the federal convention.

The current Michigan Constitution was also drafted pursuant to a constitutional convention held in Lansing from October 1961 to August 1962. The Michigan delegates were elected in a primary election held in July 1961. A delegate was chosen from each of the then-existing 110 state House of Representative districts and 34 state Senate districts. Each delegate voted at the Michigan convention on the principle of one man, one vote. Former American Motors Company president and future governor George Romney was the chairman of the Michigan convention.

Length

The U.S. Constitution is 4,543 words. The Michigan Constitution dwarfs the United States document with at least 31,000 words.

Ratification

The U.S. Constitution required nine of the 13 original states to ratify the document before it became effective. Each state held a ratification convention to debate the merits, and each had a separate process for selecting the delegates to the convention. Although no state rejected the Constitution, this was not a forgone conclusion and a vigorous debate ensued in several states, most especially in Massachusetts, New York and Virginia. Those supporting ratification were dubbed the “Federalists,” and those opposed, the “Anti-Federalists.” Both sides wrote voluminously in the papers and pamphlets of the day. The Federalist Papers (written by James Madison, Alexander Hamilton and John Jay) were a series of brilliant newspaper articles advocating ratification. New Hampshire sealed the deal when it ratified the U.S. Constitution on June 21, 1788. The United States Constitution went into effect in March 1789. Rhode Island delayed its ratification until May 1790.

Adoption of the Michigan Constitution was even a closer call. After a robust campaign, the Michigan Constitution was submitted to a vote of the people of Michigan on April Fool’s Day (April 1) 1963, and adopted by the very slim margin of 810,860 to 803,436. Unlike the U.S. Constitution, at the time of the election, the proposed draft constitution was accompanied at the ballot box with an address to the people that provided commentary about the purpose behind particular provisions of the proposed constitution. In addition, the constitutional convention produced a widely distributed 109-page booklet, “What the Proposed New State Constitution Means to You: A Report to the People of Michigan by Their Elected Delegates to the Constitutional Convention of 1961-62” for consideration by the voters.

Amendments

To amend the U.S. Constitution, two-thirds of both houses of Congress must submit a proposal to the states, and three-quarters of the states must approve the same.1 Approximately 12,000 amendments have been proposed in Congress, and only 33 have gone to the states for consideration.2 The U.S. Constitution has been amended 27 times. Such amendments include the Bill of Rights,3 the prohibition of slavery,4 establishing equal protection and due process for all people,5 voting rights for African-Americans and women,6 authorizing an income tax,7 altering United States Senate elections,8 and presidential elections and succession procedures.9

To amend the Michigan Constitution, citizens can propose an amendment via a ballot initiative when at least 10 percent of the total votes cast for all candidates for governor at the last preceding election sign a petition.10 The Legislature can also propose an amendment if two-thirds of both houses vote to do so.11 In either case, an amendment is approved by a majority vote of the people in a statewide election.12 There have been 31 proposed amendments via ballot initiatives, and 43 via legislative resolutions.13 Of those, 32 amendments have been approved and 42 rejected.14 Approved amendments include establishing the Judicial Tenure Commission,15 the creation of the State Officers Compensation Commission,16 addressing the filling of judicial vacancies,17 prohibiting public funds to aid nonpublic schools and students,18 and authorizing lotteries.19 Rejected amendments included attempts to lower the voting age to 18 (twice),20 permitting a graduated income tax,21 and permitting election of members of the Legislature to another state office during their term of office.22

Convention

A new U.S. constitutional convention can be called “on the Application of the Legislatures of two thirds of the several States,” and a new constitution may be adopted when three-quarters of the states approve the new constitution (either by constitutional conventions or by the state legislatures, as determined by Congress).23 No successful movement to call for a convention has yet occurred, although a movement dubbed the Convention of the States has obtained applications from 12 states (both houses), with partial success in 10 others (one house), calling for a convention that would “limit the power and jurisdiction of the federal government, impose fiscal restraints, and place term limits on federal officials.”24

The question of whether Michigan should hold a new constitutional convention is placed on the ballot every 16 years (beginning in 1978).25 If a majority of voters concur, a constitutional convention will be held subject to certain parameters set forth in the current Constitution.26 This process has yet to yield a call for a new convention since the enactment of the 1963 Constitution.

Separation of Powers

Each constitution provides for three branches of government: legislative, executive and judicial.27 Article III, Section 2 of the Michigan Constitution specifically provides, “The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” The U.S. Constitution has no such express provision. However, Article 1, Section 6 of the U.S. Constitution prohibits any member of Congress from being appointed to “any civil Office created under the Authority of the United States … .”

Legislative Branch

Each constitution provides for a House of Representatives and a Senate.28 Under each, members of the House of Representatives are elected for two-year terms.29 United States senators serve six-year terms and one-third of the Senate is elected during each election cycle (i.e., every two years).30 Michigan senators serve four-year terms and all are elected at once during the same year as the election for the governor.31 Michigan legislators can serve a lifetime maximum of three terms (six years total) in the House of Representatives and two terms (eight years total) in the Senate.32 No term limits exist in the U.S. Constitution.

To be a member of the U.S. House of Representatives, the representative must be at least 25 years old, a citizen of the United States for at least seven years, and an inhabitant of the state in which he is elected.33 The U.S. Constitution does not provide a set number of representatives, only that there must be at least 30,000 citizens represented by each representative.34 The total number of U.S. representatives is determined by Congress, based proportionally on population – subject to the caveat that each state must have at least one representative.35 United States senators must be at least 30 years old, a citizen for nine years, and a resident of the state he or she represents. United States senators are elected on a statewide basis, with each state having two senators.36

In Michigan, “Each senator and representative must be a citizen of the United States, at least 21 years of age, and an elector of the district he represents.”37 Michigan Senate and House districts are both determined by population.38 In addition, in Michigan “No person who has been convicted of subversion or who has within the preceding 20 years been convicted of a felony involving a breach of public trust shall be eligible for either house of the legislature.”39 The U.S. Constitution has no such bar. The legislative process is hemmed in by title, object and other legislative requirements and prohibitions.40

Hon. Michael Warren has served on the Oakland County Circuit Court since 2002, and teaches constitutional law at Western Michigan University Cooley Law School. He is a former member of the state board of education, co-creator of Patriot Week (www.PatriotWeek.org), and author of America’s Survival Guide: How to Stop America’s Impending Suicide by Reclaiming Our First Principles and History.

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Footnotes

1       Article V.

2       Drew Desilver, “Proposed amendments to the U.S. Constitution seldom go anywhere,” Pew Research Center (April 12, 2018).

3       Amendments I-X.

4       Amendment XIII.

5       Amendment XIV.

6       Amendments XV and XIX.

7       Amendment XVI.

8       Amendment XVII.

9       Amendments XII, XX, XXII, XXV.

10     Article XII, Section 2.

11     Article XII, Section 1.

12     Article XII, Section 1-2.

13     State of Michigan, Bureau of Elections, Initiatives and Referendums Under the Constitution of the State of Michigan of 1963.

14     Id.

15     Article 6, Section 30.

16     Article 4, Section 12.

17     Article VI, Sections 20, 22-24.

18     Article VIII, Section 2.

19     Article IV, Section 41.

20     Senate Joint Resolution “A,” P.A. 1966, p. 678; House Joint Resolution “A,” P.A. 1970, p. 690.

21     Senate Joint Resolution “G,” P.A. 1967, p. 672.

22     Senate Joint Resolution “Q,” P.A. 1968, p. 708.

23     Article V.

24     Convention of the States, https://conventionofstates.com#whyCallCos.

25     Article XII, Section 3.

26     Article XII, Section 3.

27     United States Constitution, Articles I-III; Mich Const 1963, Articles IV-VI.

28     United States Constitution, Article I, Sections 1-3; Mich Const 1963, Article IV, Sections 1-3.

29     United States Constitution, Article I, Section 2; Mich Const 1963, Article IV, Section 3.

30     Article I, Section 3.

31     Article IV, Section 2.

32     Article VI, Section 54.

33     Article I, Section 2.

34     Id.

35     Id.

36     Article I, Section 3.

37     Article IV, Section 7.

38     Article IV, Sections 2-3.

39     Article VI, Section 7.

40     Article IV, Sections 24-26.

Guest Essayist: Brad Bergford

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Native American peoples lived in the area of present-day Montana for an unknown period of time before the arrival of the first Europeans in the 18th century. Most of present-day Montana was included in the Louisiana Purchase, which President Jefferson completed in 1803. The next year, President Jefferson commissioned the Lewis and Clark Expedition. Soon after, Catholic missionaries entered Montana. Beaver trappers followed shortly thereafter. Through the first twenty years of the 19th Century, the Salish people learned about Christianity because of their contact with the Iroquois people and with Jesuit priests. In the 1830s, the Salish people began sending emissaries to Jesuits in St. Louis, Missouri to request that a “blackrobe” (Jesuit priest) be sent to them in present-day Montana.  The blackrobes were finally able to send a priest to minister to the Salish people in 1841.

Between 1848 and 1864, parts of present-day Montana were included in several U.S. territories, including the Oregon, Washington, Dakota, and the Idaho Territories. Montana was the site of the battle between the Sioux people and the U.S. Army, which we often refer to as “Custer’s Last Stand,” and it carries a lively history typical of the Old West.

Like many western states, the discovery of gold had a lot to do with Montana’s early days and its admission to the Union as a state.  Congress designated Montana a territory after gold was discovered in 1862 by a fur trapper who, it is rumored, attempted to keep his discovery a secret to preserve the area for fur trapping. Two decades later, railroads made their way across Montana, and, if it wasn’t already, the state fully entered the throes of western expansion. Nicknamed the “Treasure State,” Montana became the 41st state in 1889. The state motto, “Oro y Plata,” translates “Gold and Silver.”

Montana’s Constitution was re-written in 1972 and contains a Declaration of Rights which reads much like the federal Bill of Rights.  It contains protections for religion, speech, and the press, as well as prohibitions on ex post facto laws and on unreasonable searches and seizures, to name a few. The freedom of religion provision, for instance, closely follows the U.S. Constitution’s First Amendment Establishment and Free Exercise Clauses: “The state shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”

In 1916, Montana suffragist, Jeanette Rankin, became the first female member of U.S. Congress. During the Great Depression, President Franklin D. Roosevelt’s New Deal brought new projects and agencies to Montana and ushered in Montana’s first reliance on federal spending—a reliance that continues to this day.  In its early days, natural resources were the state’s primary economic boon.

Montana, known to many as the “Big Sky” state, is the fourth-largest U.S. state by area and boasts many scenic areas. Flathead Lake is the largest freshwater lake between the Pacific Ocean and the Mississippi River. The Rocky Mountains run right through the state, although the average elevation of Montana is only 3,400 feet. Nearly 500 bison live in National Bison Range, which was established for their preservation. Montana’s seven Indian reservations host eleven tribal nations. Established in 1872, Yellowstone National Park is the first National Park in the United States.

Recently, agriculture and tourism have risen to prominence in Montana’s economy. In June 2019, a Montana court case brought new attention to the state when the U.S. Supreme Court granted certiorari to a religious liberty case called Espinoza v. Montana.  There, the state of Montana is being sued for refusing, based on its Blaine Amendment, to allow religious schools to participate in a scholarship program. (Blaine Amendments prohibit the expenditure of public funds directly to educational institutions with religious affiliations.) The case is highly anticipated in light of Trinity Lutheran v. Comer, which ruled on narrow grounds that religious groups cannot be barred from participation in widely available public programs simply because they are religious. Espinoza v. Montana will test whether Blaine Amendments will survive and, if so, in what form.

Montana has a rich heritage that began long before it became a state. From Native American cultures to the gold rush to its mountainous beauty and expansive plains, it has been a land filled with excitement and wonder. Today’s Montana carries the echoes of the past in its vibrant western roots, and it offers anticipation of a dynamic future as new industries establish leading roles for the future.

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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Guest Essayist: Greg Davidson

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State capitol buildings in the United States embody the constitutional commitments found within the text of each state constitution, buildings that some have called the very temples of democracy.  Each state capitol building in the United States presents the basic, fundamental attentiveness of the state government to the people it serves.  Some of the capitols are small, domed buildings with expansive wings, while others are tall, executive-style towers reaching upward toward the heavens.  Some are cloistered in urban areas.  Most are set in rural settings.  Some harken back to classical Rome, while others celebrate the preeminence of modern man.  One thing they all have in common: each embodies the values of their respective constitutions while continuously serving as the seats of governance for the states and their citizens.

In general, the shape and design of state capitol buildings can be understood in three common categories: the statehouse, the domed capitol, and the executive tower.  The statehouse form generally has a flat or slightly pitched roof with some type of spire or lantern capping off the building.  Some statehouses are built with flat fronts and square windows in a federal style while others incorporated columns and wide porticos.  Many early American capitols have slightly pitched or flat roofs and small areas for assembly and the conduct of business.  The first capitol was a flat, adobe structure in Santa Fe, while later colonial capitol buildings in the northeast generally had pitched roofs to allow snow and precipitation to roll off.

The domed capitol emerged during the post-war period of the nineteenth century and reflected a classical or neo-classical philosophical adherence to design.  The domes in some cases were supported by massive Greco-Roman columns with colonnades raising the whole structure sometimes hundreds of feet into the sky.  The whole design, of course, was capped with some emblem or symbol taken from state mythology, something like Nebraska’s sower, Oregon’s Pioneer Man, or Texas’ Goddess of Liberty.  Finally, the tower form of state capitols was introduced in the twentieth century.  The tower portrays a slender and sometimes sterile devotion to the bureaucratic state, a place where workers are stacked one on top of another in the name of efficiency and equality, a not-so-subtle nod to the Soviet influence of mid-century American labor movements.

Why are statehouses and capitols important to the modern American state?  The style and form of the building also embodies the basic values and faithfulness of the political culture that gave it birth.  State capitols built in the nineteenth century possess a dedication to Greco-Roman architecture and philosophy, a neo-classical look back to the ideals of a republic.  Capitols built in the twentieth century reveal a focus on the achievement of the modern man through art deco murals, frescos and friezes that celebrate humanity, ingenuity, and conquest over nature and the land.

Regardless of the style or form, each capitol building or statehouse reflects the shapes and contours of the constitution that gave it life.  When most capitols were built to house the entirety of a state government, and as a state grew in population, its state capitol grew along with it.  Some older and smaller capitols were replaced by newer, more modern buildings.  Many were replaced after fire ravaged the original structures.  Prior to the expansion of the welfare state, state capitols usually housed all of the basic fundamentals of government: legislative, executive and judicial branches.  This basic separation of powers was displayed in the spatial organization of the building; the legislature occupied the most prominent part of most state capitols, taking two wings to house the bicameral bodies that balance representative powers, while the executive and courts were housed in other places around the building.

In most capitol buildings, the legislative chambers occupy the largest space and reach the heights of two to three floors.  These grandiose chambers reflect the priority and resolve to representative government contained in most state constitutional documents.  Most legislative chambers were built prior to Reynolds v. Sims in 1964, a United States Supreme Court decision that dismissed the differences between the two chambers and essentially made no difference between state senators and state representatives except for the size of the population each represented.  The house of representatives is generally the larger of the two chambers to accommodate the larger number of state representatives.  The senate chamber is generally smaller and houses a more elite body, considered the upper chamber.  Gallery space is almost always provided for citizens to observe the debate and interactions of the legislative bodies.

The governor and the executive agencies were generally provided smaller spaces on the ground floors to provide direct services to the people.  Placing state agencies that provided direct services to the people such as the treasury or comptroller or the attorney general on the first floor gave citizens the most direct access to the offices they needed to visit to conduct state business.  Finally, the judiciary was fit in where space allowed.  In some state capitols the courts were placed on the upper floors out of the main pathways of power while in other capitols the courts were either in the basement or moved out of the capitol altogether, yet again portraying the basic founding principles of their state constitutions.

There are, of course, many outliers to this general description.  The unicameral legislature in Nebraska is a departure from the bicameral model of most states, and so the Nebraska capitol reflects that difference in the size and shape of its legislative chamber.  And growth throughout the life of each state capitol has dictated changes, modifications and expansions to the basic shape of each capitol.  The oldest state capitol building, in Massachusetts, has grown and expanded as the needs of the state grew and expanded.  Some states have retained the old capitol building as a museum, and built modern chambers and offices.  Some states have resisted the urge to expand at all and still live within the walls of their original building.  Others have built auxiliary chambers or even vast underground complexes to keep from obscuring the grand view of these wonderful monuments to American government.

Finally, while the basic shape and form of state capitols reveals the basic shape of the government, many of the buildings embody the shared values and experiences of the people who gave their government birth.  The Idaho capitol was built to be heated by streaming geothermal springs while the rotunda of the capitol in Honolulu resembles the shape of a volcano.  The Oklahoma capitol sits among oil well derricks that fueled the state’s growth while the Missouri capitol sits on the banks of the mighty Missouri River.  Many capitol buildings, especially domed capitols, represent the basic religious commitments of the people who formed the government.  The domed capitol is loosely patterned after the beautifully domed St. Paul’s Cathedral in London.  The cruciform shape with a transept bisecting the nave is more than a tip of the cap to Christianity, it is a solid affirmation that the separation of church and state is much more complicated than it is portrayed in modern thought.  Each state capitol building links the identity of the people and their values with the powers they have placed in the hands of their state governments.

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: Greg Davidson

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American state capital cities are an organic part of the American landscape.  Capital cities sprung up along the natural waterways and pathways of American travel and commerce.  Some grew next to the mighty rivers and others at the junction of major trade routes.  Some are in the foothills while others are on the plains, some on the coastal bays and others far inland.  Some emerged from the bareness of the great plains while others emerged from the small neighborhoods, burgs and towns that dotted the landscape.  Some are located in major urban centers while others snuggle into smaller, rural communities.  The fifty American state capital cities provide a unique study in the diversity and richness of the American experience.

The oldest American capital cities grew on opposite sides of the continent.  Santa Fe was founded in 1610 as the first colonial American capital city followed by Boston in 1630.  Santa Fe was designated as capital of the new Spanish colony of Santa Fe de Nuevo México and was situated in the foothills of the Sangre de Cristo mountains. Thirty years later the British Massachusetts Bay Colony established its capital on what was then known as Trimountaine, or Three Mountains, later to be renamed Boston after Lincolnshire, England previous home of some of the prominent colonists.

The newest state capital cities are also the largest in size.  The Alaskan capital of Juneau dates back to 1881 and covers a total area of over 4,800 square miles, almost half of which is water.  Oklahoma City grew out of the land rush of 1889 and now covers just over 600 square miles.  Phoenix is a not too far distant third in size covering 516 square miles, but Phoenix ranks first in population with over 2 million people.  The smallest state capital cities tend to be older and back east.  The smallest state capital in population is Montpelier with around 8,000 people and the smallest capital city by geographic size is Hartford with just over 17 square miles.

Some capital cities grew at the junction of major trade routes.  Nashville was planted as a port on the shores of the Cumberland River, a major tributary of the Ohio River, and it later became a railway hub linking together southern and northern commerce.  Kansas City was founded as a port on the Missouri River at the confluence with the Kansas River and then grew into a major launching point for westward expansion as the trailhead of the Santa Fe, Oregon and California Trails.

Many state capitals have moved from several cities before arriving at their present location.  Chillicothe was the first capital city of Ohio before it was moved Zanesville in an attempt to establish more development in the eastern part of the state along Zane’s Trace.  But political powers pulled the capital back to Chillicothe for two years before finally landing in Columbus.  The capital of Texas has moved several times.  During the Texas War for Independence, the revolutionary government established capitals at Washington-on-the-Brazos, Harrisburg, Galveston, Velasco, and Columbia before General Sam Houston finally moved it to Houston.  As an independent nation, President Mirabeau B. Lamar envisioned a Texas growing west and moved the capital to a more central location in the small town of Waterloo, later to become Austin.  Houston was elected President and feared the new location was too remote and too difficult to defend from Mexican and native American threats, so he moved the capital first back to Houston and then to Washington-on-the-Brazos.  In an incident known as the Texas Archive War, President Houston sent troops to seize the General Land Office records in Austin and take them to the city of Houston.  A band of Austin citizens engaged the troops on the outskirts of town, preventing the records from being removed and taken to Houston and Austin was thereby firmly established as the capital of Texas.

While many state capital cities grew up organically from the geology and geography of the land, some were planned from the beginning.  Upon his arrival in the Salt Lake Valley, pioneer and president of the Mormon Church, Brigham Young, envisioned a master-planned city built around a new Salt Lake Temple.  Every inch of the city was measured from Temple Square as the meridian of reference for street addresses forming a grid of the streets that were sufficiently wide enough so a wagon team could turn around without “resorting to profanity.”  The capital of Indiana was also a planned community, springing out from Monument Circle in a grid crisscrossed by diagonals reminiscent of the national capital.

Finally, it is important to note that many state capital cities predate the ratification of the national constitution and the subsequent construction of the national capital of Washington, D.C.  While Frenchman Pierre Charles L’Enfant looked to the great cities of the world for his design, especially his hometown of Paris, his design for the tidelands and the marshy swamps of the Potomac worked in the basic constitutional commitments to a federal form of government.  His design provided the national government with a shape and design while incorporating specific centers, streets and areas devoted to the particular states.  So, even the shape and design of the District of Columbia anticipates a truly federal form of government for the United States, one in which the balance of power resides in both spheres of American government, state and national.  The designations of special spaces in the District of Columbia and even the street names and places anticipate a truly diverse political state, one where the balance of power between state and nation is shared, in stark contrast to the modern notion of centralized governmental control emanating only from within the Beltway.

Regardless of size, shape, design or location, state capital cities bear one common trait: they form the context in which their individual state capitol buildings sit.  At times small and cloistered, at times big and wide open, the community of the capital city forms the foundation on which each state capitol is built.

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: Mary Salamon

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State government is designed almost exactly like the Federal government. In every state except Nebraska, state governments govern with a two-chamber legislature. The smaller, upper chamber, is called the State Senate and the larger, lower chamber, is called the House of Representatives, Assembly or House of Delegates.

There are three branches of government in every state: legislative, executive, and judicial. The balance of powers spread among three branches ensures a just and fair system. Most states have a governor, lieutenant governor, senators and representatives, most of whom serve in what is called a State Legislature. Other names used are General Assembly, General Court, or Legislative Assembly.

The Nebraska legislature only has only one chamber called unicameral because it consists of only one house. Although generally referred to as the “Legislature” or the “Unicameral,” the senate is the legislative body that was retained following the 1937 reorganization. Consequently, members of the Nebraska legislature are only referred to as “senators.”

At the state level, representatives are elected according to districts and population determines how many representatives are elected. In general, each district receives two state representatives and one state senator. For example, Washington State has 49 senators, one for every district, and 98 representatives, two for every district. Term length for the Washington State senate is four years, and two years for representatives. In Washington State, like the Vice President of the United States, the Lieutenant Governor serves as President of the Senate, only casting a vote in case of a tie.

Largely populated states have legislatures that function similar to Congress regarding legislative sessions. Some states have full-time legislatures, others part-time affecting length of months spent in session. State legislators vote on hundreds of bills a year while they are in session and decide tax laws, state spending, and other public policies to represent the people in each of their specific districts.

Each State House of Representatives elects a Speaker of the House at the beginning of their respective legislative sessions. According to Ballotpedia.org,

The speaker is the principal leader of the lower legislative chamber. Though specific duties of the position vary in state legislatures across the country, the speaker may assume any or all of the following duties:

  • Presides over the chamber to ensure that members abide by the rules and procedures
  • Acts as a leader of the majority party
  • Serves the constituency of their district
  • Administers oaths of office
  • Communicates with state executives and Senate leadership
  • Rules on procedural questions
  • Appoints committee chairs and/or members
  • Signs legislation and official documents

Depending on the state, the speaker of the House may vote on all questions before the chamber or may only cast tie-breaking votes. In some states, the speaker may vote on all questions, but is only required to vote in the event of a tie.

State legislators are voted into office by the people of their respective states, and for the people of those states. They are elected to represent the needs and concerns of the people who gave them their votes. Understanding what  constituents need is a complex task, so communication with constituents is a vital key to doing the best job possible while legislators serve in office.

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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References:

Nebraska State Legislature: https://nebraskalegislature.gov/about/ou_facts.php

Ballotpedia, House Speaker: https://ballotpedia.org/State_Speaker_of_the_House

Ballotpedia, Washington State: https://ballotpedia.org/Washington_State_Legislature

 

Guest Essayist: Jeffrey Hollingsworth

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The Maine Event: The Crisis and Its Outcome

The young United States was expanding, and by 1819 had grown to 21 states from the original 13 with more territories lining up to get in thanks to the Louisiana Purchase. But this raised serious political problems. The thorny slavery issue darkened much of American political discourse and policy in the early post-independence years. A precarious balance of power in Congress between slave-holding and free states prevailed until December 1819, when pro-slavery Alabama was admitted to the Union as the 22nd state.

Missouri, carved from the Louisiana Purchase, came knocking next seeking statehood but its application ignited an enormous constitutional crisis which quickly involved Maine. In November 1818, the Missouri territorial legislature passed legislation requesting statehood and transmitted it to the U.S. Congress in December. What should have been a no-brainer for admission became bogged down in controversy over the precarious balance between slave and free states. Missouri intended to permit slavery, which prompted free-state legislators to attach “killer” amendments to the Missouri statehood bill that stalled it. Chaos and uproar ensued in Washington.

Along came Maine, where separation sentiment was growing. Many previous efforts to permit Maine to break away died in the Massachusetts General Court (legislature). But the times were catching up. Seeking to eliminate its Revolutionary War debt to the U.S. government, Massachusetts found easy money by selling off vast swaths of public land in Maine and by granting generous acreages to war veterans. Thousands of pioneer families left the crowded Bay State and trekked to the Maine wilderness seeking elbow room and new opportunities. In less than 30 years, the population more than tripled, from 91,000 in 1791 to 300,000 by 1820.

As Maine grew, so did discontent with its political and economic dependence on Massachusetts. Prosperous coastal merchants, eager to govern themselves, were the first to complain. But with continued population growth outside the old coastal towns, frustration spread to fishermen and inland farmers and woodsmen, who had little in common with the governing gentry. By 1800, they were spearheading the quest for statehood, citing a long list of economic and political grievances. The War of 1812 was the final nail in the coffin, even for the merchant class.

At last, in the summer of 1819, Mainers voted so overwhelmingly–nearly ¾ of the electorate– for statehood that Massachusetts could no longer turn a blind eye. The legislature reluctantly adopted a statehood bill for Maine in late 1819, but with one proviso: if statehood was not approved by Congress and signed by the President by March 4, 1820, Maine would remain tethered to Massachusetts.

The Maine statehood bill came up in Congress in December of 1819, mere weeks after Missouri’s bid. Maine’s application offered the possibility of a compromise. To maintain the free-state/slave-state balance, Congressional leaders pushed the two requests for statehood as a package — one new slave and one new free state. Maine suddenly found itself in the midst of a firestorm of controversy.

Abolitionists all over the Union erupted. They were firmly opposed to the admission of any new slave states. Pro-slavery interests were equally as upset. Many Mainers, most of them ardent abolitionists, were torn. To prevent the spread of slavery, they found themselves calling for the defeat of the very bill that would have granted them long-sought statehood. The most distinguished Maine native in the country was Rufus King. Born and raised in Scarborough, scion of a wealthy family, he had a noteworthy political career. A Signer of the U.S. Constitution, he was twice the Federalist Party candidate for President and was a U.S. Senator from New York at the time of the Maine-Missouri imbroglio. With a heavy heart, he opposed the Maine statehood measure because, as he correctly foresaw, the “compromise” didn’t settle the slavery issue, but merely postponed a final day of reckoning. Meanwhile, his half-brother, William King, principal author of Maine’s constitution, was elected Maine’s first Governor.

At the last minute, the bill for Maine statehood passed Congress; on March 3, 1820, and signed into law, taking effect on March 15. Maine became our 23rd state. Missouri joined the Union as a slave state in 1821. The so-called Missouri Compromise had severely tested several key articles and amendments in the U.S. Constitution during tense, angry debates. In a long letter on April 22, 1820, to his friend and political associate John Holmes, who became one of Maine’s first two U.S. Senators, the aging Thomas Jefferson wrote:

“… this momentous question, like a fire bell in the night, awakened and filled me with terror. I considered it at once as the knell of the Union. It is hushed indeed for the moment. But this is a reprieve only, not a final sentence.”

Like the venerable Rufus King, Jefferson perceived that the Missouri Compromise represented “a reprieve only, not a final sentence.”  That “final sentence” would come through all-out war 40 years later.

Maine’s Constitution

The Maine Constitution is the fourth-oldest operating state constitution in the country. The 210 delegates to the statehood convention in October 1819 unanimously adopted the proposed state constitution, which is modeled closely on the U.S. Constitution. Notable contents:

  • Article I contains 24 sections, the longest of which (Section 3) painstakingly spells out provisions regarding religious liberty.
  • Thomas Jefferson authored Sections 1 and 2 of Article VIII addressing education.
  • Article I, Section 6-A is one of the earliest official codifications in the U.S. of non-discrimination against all persons without exception.
  • Article I, Section 16 is among the most explicit defenses of the right to keep and bear arms ever written: “Every citizen has a right to keep and bear arms and this right shall never be questioned.”
  • Article II, Section 1 specifically grants Native Americans “residing on tribal reservations and otherwise qualified” the right to vote in all elections.

In 2015, controversy erupted when a Maliseet Tribe delegate to the Maine Legislature sought to overturn a 19th Century ban on printing the text of Article X, Section 5, which defines the state’s obligations to Native American tribes via carryover provisions from Massachusetts.

The Constitution of Maine is updated as necessary by the Revisor of Statutes upon ratification of amendments by the voters of the state. The Constitution of Maine is subject to recodification every 10 years by its own terms (Article X, Section 6). The last recodification was in 2013.

Additional Maine History

  • Printed flat maps show Maine as extremely high north. In truth, seven U.S. states extend farther north in whole or part than Maine. True globes confirm that Maine is much more easterly than northerly. Portland is the closest key seaport to Europe by a factor of hundreds of miles, as is Bangor International Airport (a former B-52 bomber base) for air traffic. The easternmost point in the U.S. is, oddly enough, West Quoddy Head in Lubec, Maine.
  • The legendary political axiom “As Maine goes, so goes the nation” stems from the fact that Maine once held its general elections in September rather than November, on the sensible reasoning that snow could be flying by then. In September 1840, Maine elected a Whig Party governor. That November, Whig candidate William Henry Harrison was elected President. That launched the saying of Maine as a political bellwether, which held true roughly 70% of the time up through the late 1920s. Maine amended its constitution in 1957 to conform to the rest of the country and held elections in November effective in 1960.
  • The baseball term signifying the batting order–“At bat, on deck, and in the hole”—originated in Belfast, Maine, in 1872. It was confirmed personally by Paul Dickson, author of the authoritative, widely cited Dickson Baseball Dictionary, based on his original research in Belfast in 1987. A 1938 Sporting News feature published recollections of an aged member of the Belfast Pastimes, who played a traveling Boston pro team on August 7, 1872, in Belfast. Team scorekeepers back then would shout the batting order each inning. Boston’s man simply bellowed the names. But the Belfast man announced “Smith at bat, Jones on deck (or ‘on the deck’), and Doe in the hold,” reflecting Belfast’s maritime roots, the hold being the below-deck storage area on a commercial vessel. The Bostonians took a fancy to the designation and popularized it. Over time, “hold” slurred into “hole.”

The original score sheet from that game is on display at the Belfast Historical Society Museum.

  • Why is Maine often referred to as “Down East?” It’s a nautical term. In warm weather, prevailing winds in New England and Maritime Canada come out of the southwest, meaning ships headed there sailed downwind. Conversely, when en route to Boston, New York, or other lower locales, sailors dealt with upwinds. To this day, many Mainers speak of going “up to Boston.” The area known as Down East is most commonly the territory east of the Penobscot River and sometimes includes Canada’s Maritime provinces.
  • In mid-coast Maine, the town of Searsport, never home to more than 2,500 residents, once boasted 17 shipyards and in the 1870s was home to fully one-tenth of all American merchant sea captains.
  • The first international telephone call took place July 1, 1881, between St. Stephen, New Brunswick, Canada, and Calais, Maine, USA. For generations, Calais and St. Stephen have enjoyed close relations. One example stems from the War of 1812, when the British military supplied St. Stephen with a large supply of gunpowder for protection against the Yankee enemy in Calais. Instead, St. Stephen’s leaders donated much of it to Calais so it could enjoy a proper boom-and-bang Independence Day celebration.

Jeffrey Hollingsworth grew up in Belfast, Maine, and is a University of Maine alumnus. He is a past president of the Maine State Society of Washington, D.C., and principal founder of its charitable foundation. He is the author of Magnificent Mainers (Covered Bridge Press), a compendium of mini-biographies of 100 famous Maine natives. His articles have appeared in Honolulu and Down East magazines and in the Las Vegas Review-Journal, Portland Press Herald, and other periodicals.

 

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Vanesa Carrillo is a senior at Bel Air High School in El Paso, TX. She is also a part-time Community College student at El Paso Community College where she has earned over 30 college credit hours. Vanesa is the President of her Spanish Honor Society chapter and President/Co-Founder of her school’s first all-girls business empowerment club called JWIB. She has successfully completed a Congressional Internship with former Congressman Beto O’Rourke and is currently a Marketing Intern for the Nonprofit organization called Latinitas, where she manages all social media and outreach sites. Vanesa is also part of The College Board Youth Advisory Board, The Federal Reserves Dallas Bank Board of Directors and The El Paso Jr. Leadership Greater Chamber Organization. Vanesa has also taken time to conduct research with a doctorate professor in a 6-week summer camp at UT Arlington. Aside from school, Vanesa enjoys to write, sing as well as Volunteer for The Chamizal National Memorial Park. Vanesa plans on majoring in Marketing with a minor in Psychology at The University of Texas at El Paso.

Guest Essayist: Jeffrey Hollingsworth

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Barely 30 years after the contentious adoption of the U.S. Constitution in 1787, the experiment in self-government and democratic republicanism that enraptured de Tocqueville and other noted admirers of the new United States of America was at grave risk of collapse. Maine’s aspirations for statehood were at the heart of the hullabaloo. It was in a wrestling match with Missouri for admission to the Union. In fact, Members of Congress representing the District of Maine, as it was known—then belonging to Massachusetts—voted against legislation that would have admitted their home as a state even after longstanding agitation in Maine for statehood.

So why, when at long last statehood was within reach, did these officials and many of those they represented object to legislation that would unlock the door to statehood? Their reasons are at the heart of why we are “one nation, indivisible” and how small, remote Maine helped preserve the U. S. of A. at a grave hour in its early history.

Earliest Maine: How the Story Began

The first Mainers have been traced to approximately 3,000BC. They’re known as the “Red Paint People” due to their liberal use of red ochre in pottery and burial rituals. Native American tribes still extant in Maine are the Penobscot, Passamaquoddy, Micmac and Maliseet.

Why Maine is called “Maine” (the only one-syllable state)  still isn’t clear. Some scholars say it was named after the French Province of Maine. Others suggest it’s from a maritime term for “the main” or mainland, to distinguish it from islands. Some sources claim Vikings visited Maine as early as 1000AD, but the first recorded European was Italian explorer Giovanni da Verrazzano in 1524. Others later included Capt. John Smith (yes, the John Smith) for England and Samuel de Champlain for France.

Champlain fostered an attempted permanent settlement in June 1604 on St. Croix Island off Robbinston, Maine, opposite Bayside, New Brunswick. The colony failed within a year, most settlers felled by “mal de la terre” (scurvy). It was home to the first known Christmas celebration in the New World. The island, though in U.S. waters, is an International Historic Site, the only one in North America, jointly administered by the U.S. and Canadian governments.

Instead of Jamestown, Virginia, the Popham Colony in present-day Phippsburg, Maine, could’ve been the first permanent English settlement in the U.S.A. Sir George Popham and Sir Raleigh Gilbert led 120 English settlers to landfall at the mouth of the Kennebec River in August 1607. Other English settlers had reached today’s Jamestown in mid-May 1607. The Popham colonists started off strongly. They built the first commercial ship ever constructed in the New World, the pinnace Virginia of Sagadahock. This milestone was commemorated by a 1957 U.S. stamp officially recognizing the origin of shipbuilding in the U.S.  Shipbuilding has been a mainstay (no pun intended) of Maine’s economy over the succeeding four-plus centuries.

But the Popham Colony was doomed. After experiencing winter, half the surviving cold, hungry settlers grew disillusioned and fled back to England. Gilbert later received news of his father’s passing and needed to address vital family matters. He left for England, never to return. Lacking leadership, the remaining colonists abandoned the settlement almost a year to the day after landing. Jamestown’s settlers hung on, though barely. Today, archeological excavations at both sites keep unlocking secrets about our country’s first English settlers.

Maine Grows

From Popham through the next 175 years, Maine ownership shifted from one royal grantee to another. The major promoter of Maine settlement was Sir Ferdinando Gorges, an English aristocrat later dubbed “The Father of English Colonization in North America,” though he never set foot in the New World. With Captain John Mason (a principal colonizer of New Hampshire), Gorges secured a patent from King James I in 1622 for vast territory in Maine. During  the next 50 years, disputes and squabbles over Gorges family holdings and competing land claims finally led Gorges’s grandson to sell all the property to the Massachusetts Bay Colony in 1677.

Maine grew slowly but steadily, yet not without incident. Devastating hostilities with Native Americans erupted periodically, and colonial conflicts took their toll. France considered all the land up to the Kennebec River, which bisects Maine, to belong to New France. Its farthest outpost was the present-day town of Castine, which see-sawed between French and British control for decades. In 1674, during a war between France and The Netherlands, Dutch naval forces captured Castine and environs, part of a grandiose venture to establish Nova Hollandia (“New Holland”). Maine suffered further privations during the French & Indian War (1754-63). Then came America’s War for Independence.

Mainers were distinguished soldiers, sailors and commanders in the Revolutionary War, and Maine was the scene of several battles. The most notorious was the infamous bombardment and burning of Falmouth—now Portland—on Oct. 18, 1775. The British Navy launched a far-flung campaign to punish seaports aiding the rebel forces, and Portland fell into the dragnet. The fierceness and merciless intensity of the assault was widely reported throughout all 13 colonies and helped inflame passions against Britain. It prompted the Second Continental Congress to pass legislation authorizing what John Adams wrote led to “the true origin of the American Navy.” Earlier, in the first naval battle of the Revolution, patriots in remote Machias swarmed and captured the British sloop HMS Margaretta in June 1775. The dead and wounded on both sides were carried to Burnham Tavern, where the plot to seize Margaretta was hatched. The tavern, a National Historic Site, still stands.

The worst American naval defeat until Pearl Harbor occurred near the mouth of the Penobscot River as vessels augmented by ground forces sought to oust the British from eastern Maine (“New Ireland,” as Britain had declared it). A 44-ship armada, reinforced by some 1,000 marines and a 100-man artillery contingent commanded by Lt. Col. Paul Revere, left Boston for Maine in late July 1779. The colonials were no match for the Royal Navy. Most American ships not blown out of the water either were scuttled or captured, then hauled upriver to Bangor and burned. The surviving colonials fled overland with few supplies or weaponry. The “Penobscot Expedition” is among the darkest episodes in U.S. military history.

Many Maine communities were occupied by British forces. It underscored the indifference and incapacity of Massachusetts toward defending the region. Maine took years to recover, and louder rumblings for statehood began. The crippling Embargo Act of 1807 made matters worse, since Maine’s economy relied heavily on seagoing commerce. Then, the War of 1812 put many Maine communities under British boot-heels yet again. Its easternmost city, Eastport, wouldn’t even be liberated until 1818, three years after the war ended. Two major (and other lesser) engagements occurred in Maine: the 1814 Battle of Hampden (near present-day Bangor), a humiliating U.S. defeat; and the electrifying clash between HMS Boxer and USS Enterprise on Sept. 5, 1813, just off Pemaquid Point near the mouth of the Kennebec River. The thunderous, furious, 30-minute slugfest, witnessed by scores of residents on shore and heard by many more, resulted in the capture of Boxer. It was a widely reported and celebrated boost for U.S. morale, memorialized by Portland native Henry Wadsworth Longfellow in his poem “My Lost Youth.” The remains of both ships’ slain commanders were ferried to Portland, then reverently buried side by side with full military honors.

The war convinced most Mainers that their area was a mere stepchild of Massachusetts and the state government was nonchalant about defending it. The earlier crippling attacks by the French and native tribes hadn’t been forgotten, either. Besides, travelling to distant Boston, the state capital, on official business was an arduous, time-consuming, risky and expensive venture. The push for statehood acquired new life.

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Jeffrey Hollingsworth grew up in Belfast, Maine, and is a University of Maine alumnus. He is a past president of the Maine State Society of Washington, D.C., and principal founder of its charitable foundation. He is the author of Magnificent Mainers (Covered Bridge Press), a compendium of mini-biographies of 100 famous Maine natives. His articles have appeared in Honolulu and Down East magazines and in the Las Vegas Review-Journal, Portland Press Herald, and other periodicals.

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: Wilfred M. McClay

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The area of North America that we now call Oklahoma had a lengthy prehistory.  Its aboriginal inhabitants, known collectively as the First People, probably came to the Western Hemisphere from Asia some twenty to forty thousand years ago, crossing over into the unsettled continent over a land bridge between Russia and Alaska. They went on to establish themselves on the land thousands of years before the arrival of Europeans, settling in villages along the Arkansas, Canadian, Washita, and Red rivers, and engaging in farming, hunting, and trade. After Columbus’s voyages the region drew the interest of Europeans, particularly wandering Spanish explorers who were driven by the hope of discovering fabulous gold wealth comparable to what had been found by the Spanish soldier Hernán Cortés in his conquest of the Aztec Empire in Mexico. These adventurers merely passed through quickly, though, and did not stay and settle. Neither did the French, who were primarily interested in the riches to be derived from fur trading with the native inhabitants, and had little interest in establishing permanent settlements.

Matters changed dramatically with the Louisiana Purchase in 1803, when Oklahoma became a possession of the newly independent and rapidly growing United States, under the leadership of its third President, Thomas Jefferson. Jefferson and other leaders hoped the Purchase could provide room for an “Indian colonization zone” to solve the endemic problem of conflicts between the Native populations and the pressures exerted by expansion-minded European settlers. The concept of such a zone gradually gained favor, and a region thought of as “the Indian country” was specified in 1825 as all the land lying west of the Mississippi. Eventually, the Indian country or Indian Territory would encompass the present states of Oklahoma, Kansas, Nebraska, and part of Iowa.

In the meantime, the process of removing the Native population from the eastern woodland areas began, and accelerated with the passage in 1830 of the Indian Removal Act. A European traveler, the great French writer Alexis de Tocqueville witnessed the effects of the removal firsthand, as he happened by chance upon a westward-bound group of Choctaws crossing the Mississippi River at Memphis in December 1831. “One cannot imagine the frightful evils that accompany these forced migrations,” he remarked, and he went on to describe in compelling detail the frigid winter scene, the ground hardened with snow and enormous pieces of ice drifting down the river, as the Indian families gathered in silent and sorrowful resignation on the east bank of the river, proceeding without tears or complaints to cross over into what they knew to be an erasure of their past. It was, Tocqueville said, a “solemn spectacle that will never leave my memory.” Most of these migrants in that “Trail of Tears,” those who survived, would end up living in Oklahoma.

Eventually even this designated Indian “zone” could not withstand the pressures of land-hungry expansionists. Area after area was opened to non-Native settlement, the territory moved inexorably toward statehood. There was considerable sentiment favoring the creation of a separate “Indian” state of Sequoyah, but in the end that effort would fail, and a single state would be formed in 1907, combining Native and non-Native elements.

Even so, as the forty-sixth state in the Union, Oklahoma possesses a name that is derived from the Choctaw words okla and humma, meaning “red people,” and that name fittingly signifies the uniquely enduring importance of the Native population to the state’s identity. In no other state of the Union is the Native presence more important, more indelible, more enduring—and arguably, more honored in the state’s politics and culture. Yet the achievement of that relatively harmonious state of affairs was bitter and difficult, particularly for the Native population, which had to accept betrayals and abrogation of agreements at every step of the way.

Once a state, though, Oklahoma quickly took its place as an important center of the burgeoning petroleum industry, with the city of Tulsa being labeled “The Oil Capital of the World,” and the oil industry serving as a primary driver of the entire state’s booming economy. From the moment that Oklahoma had become part of the United States in 1803, growth had become its byword. It had gone in just a few years from being a raw and forbidding frontier to being a leading force in the growth of the world’s economy, a force now moving into higher and higher gear.

For better or worse, and despite the state’s deep commitment to agriculture as a component of its economy, the state’s general economic fortunes have generally turned upon the rising and falling fortunes of the oil industry. That is its strength, and its weakness. Its well-being in the future, particular that phases out or dramatically deemphasizes the use of fossil fuels, will hinge on its ability to develop a more diversified economy.

One factor that many observers believe holds Oklahoma back in the quest for self-improvement is its massive and antiquated state constitution. At the time of its adoption in 1907, it was the lengthiest state constitution ever written, over 250,000 words long. Strongly influenced in its drafting by the leadership of fiery populist William “Alfalfa Bill” Murray, the document went into obsessive detail, spelling out regulations, safeguards, rights, obligations, and precise instructions in ways that were more appropriate to statutory law than the freer generalities of constitutional law.

Such specificity is a sure path to obsolescence. A great many of the Oklahoma constitution’s provisions are the product of a bygone era, the Progressivism of a hundred years ago encased in constitutional amber, relevant to the past but no longer relevant to the present day. Such a hidebound constitution stands in ironic contrast to the wide-open and pioneering spirit of the state whose political life it seeks to organize. Accordingly, some of the state’s most far-sighted individuals have argued for the necessity of adopting a new state constitution. But that is easier said than done, and the chances are very good that the current constitution will remain in place for the foreseeable future.

Wilfred M. McClay is the G. T. and Libby Blankenship Chair in the History of Liberty at the University of Oklahoma, and the Director of the Center for the History of Liberty. In the 2019-20 academic year he is serving as the Ronald Reagan Professor of Public Policy at Pepperdine University’s School of Public Policy. He served from 2002 to 2013 on the National Council on the Humanities, the advisory board for the National Endowment for the Humanities, and is currently serving on the U.S. Semiquincentennial Commission, which is planning for the 250th anniversary of the United States, to be observed in 2026. He has been the recipient of fellowships from the Woodrow Wilson International Center for Scholars, the National Endowment for the Humanities, and the National Academy of Education, among others. His book The Masterless: Self and Society in Modern America won the 1995 Merle Curti Award of the Organization of American Historians for the best book in American intellectual history. Among his other books are The Student’s Guide to U.S. History, Religion Returns to the Public Square: Faith and Policy in America, Figures in the Carpet: Finding the Human Person in the American Past, Why Place Matters: Geography, Identity, and Public Life in Modern America, and most recently Land of Hope: An Invitation to the Great American Story. He was educated at St. John’s College (Annapolis) and received his Ph.D. from Johns Hopkins University in 1987.

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For Additional Reading:

W. David Baird and Danney Goble, Oklahoma: A History. Norman: University of Oklahoma Press, 2008.

David R. Morgan, et al., Oklahoma Politics and Policies: Governing the Sooner State. Lincoln: University of Nebraska Press, 1991.

The Encyclopedia of Oklahoma History and Culture, Oklahoma Historical Society, accessible online at https://www.okhistory.org/publications/encyclopediaonline.php.

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 Essayist: Patrick M. Garry

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South Dakota was admitted to the Unites States November 2, 1889 as the fortieth state. In the same year of 1889, the South Dakota State Constitution in use today was adopted.

On March 2, 1861, President Buchanan signed the bill that created the Dakota Territory. Within this territory were included the present states of North and South Dakota, Montana and Wyoming. After creating the Dakota Territory, the federal government paid relatively little attention to it, given the preoccupation with the war. But as soon as there was sufficient population in the territory, the settlers in the Dakota Territory began taking steps to achieve statehood. Starting in 1868, efforts intensified toward the admission of Dakota, either as a single state or two different states.

Even though the Dakota Territory was being settled during the Civil War, South Dakota did not become a state until 1889.  This long delay in the pursuit of statehood stemmed from political conflicts at the national level.  During the 1880s, for instance, the Democratic Congress opposed statehood for South Dakota, which was seen as a strongly Republican-leaning state. The Democratic Congress resisted admitting a state that was certain to send two more Republicans to the United States Senate. Consequently, the congressional debate on the issue of South Dakota statehood rested largely on a partisan basis.

However, the obstacles to statehood for South Dakota largely disappeared when Benjamin Harrison won the presidential election of 1888, beating Grover Cleveland. President Harrison had been a strong supporter of statehood for South Dakota during his time as senator from Indiana. At the same time, the Republican Party won control of Congress, and the national Republican Party platform of 1888 had stated that South Dakota should be immediately admitted as a new state.

The statehood bill was passed in February of 1889 and authorized the state constitutional convention of 1889, which was to be the first constitutional convention in South Dakota legally recognized by Congress.  The resulting constitution was approved by the people at an election held in October. And on November 2, 1889, President Harrison issued his proclamation admitting South Dakota as a state.

Although the 1889 convention produced the Constitution in effect today, it was not the first constitutional convention convened by statehood advocates.  The first constitutional convention for South Dakota took place in 1883, even though that convention was not authorized by Congress.

The 1883 constitution reflected the political concerns of the times.  South Dakotans sought statehood at a time when railroads and corporate conglomerates played powerful roles on both the state and national scene.  Although the railroads greatly contributed to South Dakota’s development and population, they also threatened to corrupt state legal and political processes.

At the 1883 convention, there were concerns that corporations should pay the same rate of taxes as private individuals, should not be allowed to consolidate, and should receive no aid that is not given private parties. The Convention also required the legislature to regulate railroad rates and prohibit unjust rate discrimination. The convention delegates feared that railroads or other large corporations could exercise excessive influence over the legislature.

A second constitutional convention convened on September 8, 1885.  This convention has been called the most important ever held in South Dakota, insofar as the constitution produced by that convention, with a few minor changes, became the constitution authorized by Congress and ratified by the voters in 1889.

The South Dakota statehood bill passed by Congress in February of 1889 necessitated a third constitutional convention so as to make the 1885 constitution conform to federal law.  By the time the 1889 convention occurred, the Farmers’ Alliance of Dakota Territory was playing a major political role. With declining prices for farm crops and higher production costs, many farmers had fallen deep in debt. For political relief, they turned to the Alliance, which played an influential role in securing the Initiative and Referendum provisions in the Constitution.

Perhaps the most unique feature of the South Dakota Constitution was its provisions on the Initiative and Referendum. South Dakota was the first state in the Union to adopt the Initiative and Referendum, which was later adopted by dozens of other states.

Whereas the Initiative allows the public to bypass the legislature and directly pass new laws in a general election, the Referendum allows the public to repeal a law previously enacted by the legislature. Initiative and Referendum was one of the hallmark causes of the Populist movement of the late nineteenth century.

The Populist movement promoted the Initiative and Referendum as an essential means of achieving economic reforms aimed at controlling the political power of railroads and eastern banks. South Dakota was the first state in the nation to have an active Populist Party, which in 1892 made the Initiative and Referendum a central part of its platform.

The campaign to bring Initiative and Referendum to the Dakota Territory was fueled by the economic events of the time, with Dakota farmers attributing declining commodity prices to the manipulations of railroads and eastern banks, and believing that rural interests would be better able to control those outside entities through the Initiative and Referendum process.

Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

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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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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 S